EXHIBIT 4.1
________________________________________________________________________________
PINNACLE HOLDINGS INC.
As Issuer
---------
TO
THE BANK OF NEW YORK
As Trustee
----------
______________
INDENTURE
Dated as of March 20, 1998
______________
___________
10% SENIOR DISCOUNT NOTES DUE 2008
________________________________________________________________________________
Pinnacle Holdings Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of November 26, 1996
Trust Indenture Indenture
Act Section Section
--------------- ---------
(S) 310(a)(1) ......................... 609
(a)(2) ......................... 609
(a)(3) ......................... Not
Applicable
(a)(4) ......................... Not
Applicable
(b) ......................... 608
610
(S) 311(a) ......................... 613
(b) ......................... 613
(S) 312(a) ......................... 701
702
(b) ......................... 702
(c) ......................... 702
(b) ......................... 703
(c) ......................... 703
(d) ......................... 703
(S) 314(a) ......................... 704
(a)(4) ......................... 1020
(b) ......................... Not
Applicable
(c)(1) ......................... 102
(c)(2) ......................... 102
(c)(3) ......................... Not
Applicable
(d) ......................... Not
Applicable
(e) ......................... 102
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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Trust Indenture Indentrure
Act Section Section
--------------- -----------
(S) 315(a) ......................... 601
(b) ......................... 602
(c) ......................... 601
(d) .........................
(d)(1) ......................... 601
(e) ......................... 514
(S) 316(a) ......................... 101
(a)(1)(A) 502
512
(a)(1)(B) ......................... 513
(a)(2) ......................... Not
Applicable
(b) ......................... 508
(S) 317(a)(1) ......................... 503
(a)(2) ......................... 504
(b) ......................... 1003
(S) 318(a) ......................... 107
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY 1
ARTICLE ONE Definitions and Other Provisions of General Application
SECTION 101. Definitions 1
ABRY 2
ABRY II 2
ABRY Subordinated Debt 2
Accreted Value 3
Acquisition Debt 3
Act 3
Adjusted Consolidated Cash Flow 3
Affiliate 4
Agent Member 4
Applicable Procedures 4
Asset Disposition 4
Authenticating Agent 5
Board of Directors 5
Board Resolution 5
Business Day 5
Capital Lease Obligation 5
Capital Stock 5
Cash Equivalents 5
Cedel 6
Change of Control 6
Closing Date 6
Commission 6
Common Stock 6
Consolidated Cash Flow 6
Consolidated Income Tax Expense 6
Consolidated Interest Expense 6
Consolidated Net Income 7
Consolidated Net Worth 7
Continuing Directors 7
Corporate Development Expenses 7
Corporate Trust Office 8
corporation 8
Debt 8
Default Amount 8
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Defaulted Interest 8
Depositary 8
Dollars 9
DTC 9
Euroclear 9
Event of Default 9
Exchange Act 9
Exchange and Registration Rights Agreement 9
Exchange Offer 9
Exchange Offer Registration Statement 9
Exchange Securities 9
Expiration Date 9
Full Accretion Date 9
Global Security 9
Guarantee 9
Holder 10
Incur 10
Indenture 10
Initial Purchasers 10
Interest Payment Date 10
Interest Rate or Currency Protection Agreement 10
Internal Revenue Code 10
Investment 10
Issuer 11
Issuer request; Issuer Order 11
Lien 11
Maturity 11
Net Cash Proceeds 11
Offer 12
Offer Expiration Date 12
Offer to Purchase 12
Officers' Certificate 14
Opinion of Counsel 14
Original Securities 14
Outstanding 14
Owner Securities Certification 15
pari passu 15
Paying Agent 15
Permitted Holder 15
Permitted Interest Rate or Currency Protection Agreement 15
Permitted Senior Bank Debt 15
Person 16
Pinnacle Towers 16
Predecessor Security 16
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Preferred Stock 16
Public Equity Offering 16
Purchase Agreement 16
Purchase Amount 16
Purchase Date 16
Purchase Money Secured Debt 16
Purchase Price 16
Receivables 17
Receivables Sale 17
Redeemable Stock 17
Redemption Date 17
Redemption Price 17
Registered Securities 17
Registration Default 17
Registration Default Period 18
Regular Record Date 18
Regulation S 18
Regulation S Certificate 18
Regulation S Global Security 18
Regulation S Legend 18
Regulation S Securities 18
Regulation S Temporary Global Security 18
Related Person 18
Required Filing Date 18
Resale Registration Statement 18
Responsible Officer 19
Restricted Global Security 19
Restricted Payments 19
Restricted Period 19
Restricted Securities 19
Restricted Securities Certificate 19
Restricted Securities Legend 19
Restricted Subsidiary 19
Rule 144 19
Rule 144A 19
Rule 144A Securities 19
Securities 19
Securities Act 19
Securities Act Legend 20
Securities Payment 20
Security Register; Security Register 20
Senior Credit Facility 20
Site Management Contract 20
Special Record Date 20
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Stated Maturity 20
Subordinated Debt 20
Subsidiary 21
Successor Security 21
Tower Asset Exchange 21
Tower Assets 21
Trust Indenture Act 21
Trustee 22
Unregistered Security 22
Unrestricted Securities Certificate 22
Unrestricted Subsidiary 22
U.S. Person 22
Vice President 23
Voting Stock 23
Wholly Owned Restricted Subsidiary 23
SECTION 102. Compliance Certificates and Opinions 23
SECTION 103. Form of Documents Delivered to Trustee 24
SECTION 104. Acts of Holders; Record Date 25
SECTION 105. Notices, Etc., to Trustee and Issuer 27
SECTION 106. Notice to Holders; Waiver 27
SECTION 107. Conflict with Trust Indenture Act 28
SECTION 108. Effect of Headings and Table of Contents 28
SECTION 109. Successors and Assigns 28
SECTION 110. Separability Clause 28
SECTION 111. Benefits of Indenture 28
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SECTION 112. Governing Law 29
SECTION 113. Legal Holidays 29
ARTICLE TWO Security Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S
Securities 29
SECTION 202. Form of Face of Security 30
SECTION 203. Form of Reverse of Security 34
SECTION 204. Form of Trustee's Certificate of Authentication 38
ARTICLE THREE The Securities
SECTION 301. Title and Terms 38
SECTION 302. Denominations 39
SECTION 303. Execution, Authentication, Delivery and Dating 39
SECTION 304. Temporary Securities 40
SECTION 305. Global Securities 41
SECTION 306. Registration, Registration of Transfer and Exchange Generally;
Restrictions on Transfer and Exchange; Securities Act Legends 42
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities 46
SECTION 308. Payment of Interest; Interest Rights Preserved 47
SECTION 309. Persons Deemed Owners 48
SECTION 310. Cancellation 49
SECTION 311. CUSIP Numbers
vii
ARTICLE FOUR Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture 49
SECTION 402. Application of Trust Money 50
ARTICLE FIVE Remedies
SECTION 501. Events of Default 51
SECTION 502. Acceleration of Maturity; Rescission and Annulment 53
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee 54
SECTION 504. Trustee May File Proofs of Claim 55
SECTION 505. Trustee May Enforce Claims Without Possession of Securities 55
SECTION 506. Application of Money Collected 56
SECTION 507. Limitation on Suits 56
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest 57
SECTION 509. Restoration of Rights and Remedies 57
SECTION 510. Rights and Remedies Cumulative 57
SECTION 511. Delay or Omission Not Waiver 58
SECTION 512. Control by Holders 58
SECTION 513. Waiver of Past Defaults 58
SECTION 514. Undertaking for Costs 59
SECTION 515. Waiver of Stay, or Extension Laws 59
ARTICLE SIX The Trustee
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SECTION 601. Certain Duties and Responsibilities 59
SECTION 602. Notice of Defaults 60
SECTION 603. Certain Rights of Trustee 61
SECTION 604. Not Responsible for Recitals or Issuance of Securities 62
SECTION 605. May Hold Securities 62
SECTION 606. Money Held in Trust 62
SECTION 607. Compensation and Reimbursement 62
SECTION 608. Disqualification; Conflicting Interests 63
SECTION 609. Corporate Trustee Required; Eligibility 64
SECTION 610. Resignation and Removal; Appointment of Successor 64
SECTION 611. Acceptance of Appointment by Successor 65
SECTION 612. Merger, Conversion, Consolidation or Succession to Business 66
SECTION 613. Preferential Collection of Claims Against Issuer 66
SECTION 614. Appointment of Authenticating Agent 66
SECTION 615. Trustee's Application for Instructions
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders 68
SECTION 702. Preservation of Information; Communications to Holders 68
SECTION 703. Reports by Trustee 69
SECTION 704. Reports by the Issuer 69
SECTION 705. Officers' Certificate with Respect to Change in Interest Rates. 69
ix
SECTION 706. Calculation of Original Issue Discount
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Issuer may Consolidate, Etc. Only on Certain Terms 70
SECTION 802. Successor Substituted 71
ARTICLE NINE Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders 71
SECTION 902. Supplemental Indentures with Consent of Holders 72
SECTION 903. Execution of Supplemental Indentures 73
SECTION 904. Effect of Supplemental Indentures 73
SECTION 905. Conformity with Trust Indenture Act 73
SECTION 906. Reference in Securities to Supplemental Indentures 74
SECTION 1001. Payment of Principal, Premium and Interest 74
SECTION 1002. Maintenance of Office or Agency 74
SECTION 1003. Money for Security Payments to Be Held in Trust 75
SECTION 1004. Existence 76
SECTION 1005. Maintenance of Properties 76
SECTION 1006. Payment of Taxes and Other Claims 76
SECTION 1007. Maintenance of Insurance 77
SECTION 1008. Limitation on Debt 77
x
SECTION 1009. Limitation on Subordinated Debt of Restricted Subsidiaries 79
SECTION 1010. Limitation on Guarantees of Issuer Debt by Restricted
Subsidiaries 79
SECTION 1011. Limitation on Restricted Payments 79
SECTION 1012. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries 82
SECTION 1013. Limitation on Liens 83
SECTION 1014. Limitation on Ownership of Capital Stock of Restricted
Subsidiaries 85
SECTION 1015. Asset Dispositions 85
SECTION 1016. Change of Control 87
SECTION 1017. Transactions with Affiliates and Related Persons 88
SECTION 1018. Provision of Financial Information 88
SECTION 1019. Statement by Officers as to Default; Compliance Certificates 89
SECTION 1020. Waiver of Certain Covenants 90
ARTICLE ELEVEN Redemption of Securities
SECTION 1101. Right of Redemption 90
SECTION 1102. Applicability of Article 91
SECTION 1103. Election to Redeem; Notice to Trustee 91
SECTION 1104. Selection by Trustee of Securities to Be Redeemed 91
SECTION 1105. Notice of Redemption 92
SECTION 1106. Deposit of Redemption Price 92
SECTION 1107. Securities Payable on Redemption Date 93
SECTION 1108. Securities Redeemed in Part 93
xi
ARTICLE TWELVE Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance 93
SECTION 1202. Defeasance and Discharge 94
SECTION 1203. Covenant Defeasance 94
SECTION 1204. Conditions to Defeasance or Covenant Defeasance 94
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions 96
SECTION 1206. Reinstatement 97
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TESTIMONIUM 98
SIGNATURE AND SEALS 98
ACKNOWLEDGMENT 99
ANNEX A -- Form of Regulation S Certificate A-1
ANNEX B -- Form of Restricted Securities Certificate B-1
ANNEX C -- Form of Unrestricted Securities Certificate C-1
ANNEX D -- Form of Certification to Be Given by Holders of Beneficial
Interest in a Regulation S Temporary Global Note D-1
ANNEX E -- Form of Certification to Be Given by the Euroclear
Clearance System or Cedel Bank E-1
EXHIBIT 1 -- Form of Registration Rights Agreement
SCHEDULE I -- Existing Debt that may be Refinanced
SCHEDULE II -- Existing Restrictions on Dividends
and Other Payments
SCHEDULE III -- Existing Liens
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INDENTURE, dated as of March 20, 1998, between Pinnacle Holdings Inc.,
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000
(the "Issuer"), and The Bank of New York, a New York banking corporation, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Issuer has duly authorized the creation of an issue of its 10%
Senior Notes due 2008 (the "Securities") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture. The Securities may consist of
Original Securities, Additional Securities or Exchange Securities, each as
defined herein. The Original Securities, Additional Securities and Exchange
Securities shall rank pari passu with one another.
All things necessary to make the Securities, when executed by the
Issuer and authenticated and delivered hereunder and duly issued by the Issuer,
the valid obligations of the Issuer, and to make this Indenture a valid
agreement of the Issuer, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States as consistently applied by the Issuer at the
Closing Date;
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles but shall
not include the accounts of Unrestricted Subsidiaries, except to the extent
of dividends and distributions actually paid to an Issuer or a Restricted
Subsidiary;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(6) unless the context otherwise requires, any reference to a
"Clause," an "Article" or a "Section", or to an "Annex" or a "Schedule",
refers to a Clause, an Article or Section of, or to an Annex or a Schedule
attached to, this Indenture, as the case may be; and
(7) unless the context otherwise requires, any reference to a statue,
rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time.
Certain terms, used principally in Article Six, are defined in that
Article.
"ABRY" means ABRY Partners, Inc., a ________________ corporation.
"ABRY II" means ABRY Broadcast Partners II, L.P., a _____________
limited partnership.
"ABRY Subordinated Debt" means Debt of the Issuer in principal amount
not to exceed $15 million in the aggregate at any time outstanding (a) that is
owed to ABRY II, ABRY, any other investment fund controlled by ABRY, Xxxxxx
Xxxxxx or any Person the majority of whose Voting Stock is directly or
indirectly owned by Xxxxxx Xxxxxx and (b) as to which the payment of principal
of (and premium, if any) and interest and other payment obligations in respect
of such Debt shall be subordinate to the prior payment in full of the Securities
to at least the following extent: (i) no payments of principal of (or premium,
if any) or interest on or otherwise due in respect of such Debt may be permitted
for so long as any default in the payment of principal (or premium, if any) or
interest on the Securities exists; (ii) in the event that any
2
other default that with the passing of time or the giving of notice, or both,
would constitute an event of default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Issuer and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice.
"Accreted Value" means, as of any date prior to the Full Accretion
Date, an amount per $1,000 principal amount at maturity of Securities that is
equal to the sum of (a) the initial offering price ($614.74 per $1,000 principal
amount at maturity of Securities) of the Original Securities and (b) the portion
of the excess of the principal amount of such Securities over such initial
offering price which shall have been amortized through such date, such amount to
be so amortized on a daily basis and compounded semi-annually on each March 15
and September 15 at the rate of 10% per annum from the Closing Date through the
date of determination computed on the basis of a 360-day year of twelve 30-day
months, and as of any date on or after the Full Accretion Date, the principal
amount of each Security.
"Acquisition Debt" means with respect to any specified Person, Debt
that is Incurred in connection with an acquisition of assets consisting of (i)
Debt Incurred for the purpose of financing all or part of the cost of an
acquisition by such Person or any of its Restricted Subsidiaries of assets
(including Capital Stock of a Person that will become a Restricted Subsidiary of
such Person or be merged or consolidated with or into such Person or a
Restricted Subsidiary of such Person) in an amount not to exceed 100% of the
purchase price of such acquisition, (ii) Debt of any other Person existing at
the time such other Person merged with or into or became a Subsidiary of such
specified Person, including, without limitation, Debt Incurred in connection
with, or in contemplation of, such other Person merging with or into or becoming
a Subsidiary of such specified Person, or (iii) Debt secured by a Lien
encumbering any assets acquired by such specified Person, provided in each case
(i), (ii) and (iii) that after giving pro forma effect to the Incurrence of such
Debt the ratio of (a) the aggregate consolidated principal amount of Debt of
the Issuer and its Restricted Subsidiaries outstanding as of the most recent
available quarterly or annual balance sheet, after giving pro forma effect to
the Incurrence of such Debt and any other Debt Incurred since such balance sheet
date that remains outstanding and the receipt and application of the proceeds
thereof, to (b) Adjusted Consolidated Cash Flow (after giving effect to such
acquisition) is not greater than such actual ratio prior to the Incurrence of
such Debt.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Securities" shall mean any Securities issued by the Issuer
in compliance with the terms and provisions of this Indenture in addition to (i)
the Original Securities and their Successor Securities and (ii) any Exchange
Securities.
3
"Adjusted Consolidated Cash Flow" means the Consolidated Cash Flow for
the most recent fiscal quarter for which financial statements are available,
determined (i) after giving effect on a pro forma basis to (a) any Asset
Disposition or acquisition of assets (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) by the Issuer or any
Restricted Subsidiaries during or after such quarter as if such Asset
Disposition or acquisition had taken place on the first day of such quarter, (b)
any new lease or Site Management Contract entered into by the Issuer or any
Restricted Subsidiary in the ordinary course of business with respect to Tower
Assets during or after such quarter as if such new lease or Site Management
Contract had been signed on the first day of such quarter and the rent required
by the terms of such lease or Site Management Contract for such quarter had been
received by the Issuer or a Restricted Subsidiary during such quarter, (c) the
loss after the first day of such quarter of any lease or Site Management
Contract of the Issuer or a Restricted Subsidiary with respect to any Tower
Assets that was in effect on the first day of such quarter as if such lease or
Site Management Contract had not been in effect during such quarter and no rent
under such lease had been received during such quarter, and (d) any rent
increases received by the Issuer or any Restricted Subsidiary during or after
such quarter related to leases or Site Management Contracts on Tower Assets as
if such increased rental rate had been in effect on the first day of such
quarter and the Issuer had received such increased amount of rent during such
quarter, and (ii) as adjusted to add back Corporate Development Expenses which
had been deducted from consolidated revenues in determining Consolidated Net
Income for such quarter, multiplied by four.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect at
the time of such transfer or transaction.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including a consolidation or merger or other sale of any such
Restricted Subsidiary with, into or to another Person in a transaction in which
such Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a
disposition by a Restricted Subsidiary of such Person to such Person or a Wholly
4
Owned Restricted Subsidiary of such Person or by such Person to a Wholly Owned
Restricted Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Restricted
Subsidiary of such Person, (ii) substantially all of the assets of such Person
or any of its Restricted Subsidiaries representing a division or line of
business or (iii) other assets or rights of such Person or any of its Restricted
Subsidiaries outside of the ordinary course of business, provided in each case
that the aggregate consideration for such transfer, conveyance, sale, lease or
other disposition is equal to $1 million or more.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the
relevant Issuer or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the relevant Issuer to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
New York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of six months from the
date of acquisition, (ii) certificates of deposit with maturities of not more
than six months or less from the date of acquisition, bankers= acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial
5
bank having capital and surplus in excess of $500.0 million and a Xxxxxxxx Bank
Watch Rating of "B" or better, (iii) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(i) and (ii) above entered into with any financial institution meeting the
qualifications specified in clause (ii) above, (iv) commercial paper having the
highest rating obtainable from Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Group and in each case maturing within six months after the date
of acquisition and (v) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (i)-(iv) of this
definition.
"Cedel" means Cedel, S.A. (or any successor securities clearing
agency).
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person
or group of related Persons, as defined in Section 13(d) of the Exchange Act (a
"Group"), other than to Permitted Holders; (ii) the approval by the holders of
Capital Stock of the Issuer of any plan or proposal for the liquidation or
dissolution of the Issuer (whether or not otherwise in compliance with the
provisions of the applicable Indenture); (iii) any Person or Group (other than
Permitted Holders) shall become the owner, directly or indirectly, beneficially
or of record, of shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Voting Stock of the
Issuer or any successor to all or substantially all of its assets; or (iv) the
first day on which a majority of the members of the Board of Directors of the
Issuer are not Continuing Directors.
"Closing Date" means March 20, 1998.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Cash Flow" for any period means the Consolidated Net
Income for such period increased by the sum of (i) Consolidated Interest Expense
for such period, plus (ii) Consolidated Income Tax Expense for such period, plus
(iii) the consolidated depreciation and amortization expense included in the
income statement of the Issuer and its Restricted Subsidiaries for such period,
plus (iv) other non-cash charges of such Person for such period deducted from
consolidated revenues in determining Consolidated Net Income for such period,
6
minus (v) other non-cash items of the Issuer and its Restricted Subsidiaries for
such period increasing consolidated revenues in determining Consolidated Net
Income for such period.
"Consolidated Income Tax Expense" for any period means the
consolidated provision for income taxes of the Issuer and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (without deduction
of interest income) of the Issuer and its Restricted Subsidiaries for such
period calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees (net of any amounts received) with
respect to interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements; (iv) Preferred Stock dividends of the Issuer and
its Restricted Subsidiaries (other than with respect to Redeemable Stock)
declared and paid or payable, other than dividends paid in Capital Stock that is
not Redeemable Stock; (v) accrued Redeemable Stock dividends of the Issuer and
its Restricted Subsidiaries, whether or not declared or paid; (vi) interest on
Debt guaranteed by the Issuer and its Restricted Subsidiaries; and (vii) the
portion of any rental obligation allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Issuer and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Issuer or a Restricted
Subsidiary of the Issuer in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Restricted Subsidiary of the Issuer except to the extent of
the amount of dividends or other distributions actually paid to the Issuer or a
Restricted Subsidiary of the Issuer by such Person during such period, (c)
gains or losses on Asset Dispositions by the Issuer or its Restricted
Subsidiaries, (d) all extraordinary gains and extraordinary losses, (e) the
cumulative effect of changes in accounting principles and (f) the tax effect of
any of the items described in clauses (a) through (e) above.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Issuer, adjustments following the date of the Indenture to the accounting
books and records of the Issuer in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto), or otherwise resulting
from the acquisition of control of the Issuer by another Person shall not be
given effect.
7
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Issuer who (i) was a member of such
Board of Directors on the date of the original issuance of the Securities or
(ii) was nominated for election or elected to such Board of Directors by any of
the Permitted Holders or with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"Corporate Development Expenses" means non-tower-level costs incurred
in connection with acquisitions and development of Tower Assets.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which is, at the date as of which this Indenture is dated, located at 000
Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company, partnership or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (including securities repurchase agreements but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business which are not overdue or which are being contested in good
faith), (v) every Capital Lease Obligation of such Person, (vi) all Receivables
Sales of such Person, together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith, (vii) all Redeemable Stock issued by such
Person, (viii) if such Person is a Restricted Subsidiary, all Preferred Stock
issued by such Person, (ix) every obligation under Interest Rate or Currency
Protection Agreements of such Person and (x) every obligation of the type
referred to in clauses (i) through (x) of another Person and all dividends of
another Person the payment of which, in either case, such Person has Guaranteed
or is responsible or liable, directly or indirectly, as obligor, Guarantor or
otherwise. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any contingent Debt, shall be
the maximum principal amount hereof, (b) any Debt issued at a price that is less
than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (c) any Receivables Sale, shall be the amount, if any, in
connection with such Receivables Sale for which there is recourse to the seller
or any of its Subsidiaries, (d) any Redeemable Stock, shall be
8
the maximum fixed redemption or repurchase price in respect thereof, and (e) any
Preferred Stock, shall be the maximum voluntary or involuntary liquidation
preference plus accrued and unpaid dividends in respect thereof, in each case as
of such time of determination.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means The Depository Trust Company or, if The Depository
Trust Company shall cease to be a clearing agency registered under the Exchange
Act, any other clearing agency registered under the Exchange Act that is
designated as the successor Depositary in an Issuer Order delivered to the
Trustee.
"Dollars" and "$" means such coins or currency of the United States of
America which is legal tender for payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Exchange and Registration Rights Agreement" means (i) the Exchange
and Registration Rights Agreement, dated as of March 20, 1998, between the
Issuer and the Initial Purchasers, as such agreement may be amended from time to
time, the form of which is attached hereto as Exhibit A, and (ii) any other
agreement entered into by the Issuer in the future that provides for an Exchange
Offer or resale registration with respect to any Additional Securities.
"Exchange Offer" means an offer made by the Issuer pursuant to the
Exchange and Registration Rights Agreement, in the case of the Original
Securities, or otherwise under an effective registration statement under the
Securities Act to exchange securities substantially identical to Outstanding
Securities (except for the differences provided for herein) for Outstanding
Securities.
"Exchange Offer Registration Statement" means a registration statement
of the Issuer under the Securities Act registering Exchange Securities for
distribution pursuant to an Exchange Offer.
9
"Exchange Securities" means any Securities issued pursuant to an
Exchange Offer and their Successor Securities.
"Expiration Date" has the meaning specified in Section 104.
"Full Accretion Date" means March 15, 2003.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Restricted Subsidiaries or the recording, as
required pursuant to generally accepted accounting principles or otherwise, of
any such Debt or other obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in generally
accepted accounting principles that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchasers" means Xxxxxxx, Sachs & Co. and NationsBanc
Xxxxxxxxxx Securities LLC as purchasers of the Securities from the Issuer
pursuant to the Purchase Agreement.
10
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person, including any payment on a Guarantee of any
obligation of such other Person, but shall not include trade accounts receivable
in the ordinary course of business on credit terms made generally available to
the customers of such Person.
"Issuer" means the Persons named as the "Issuer" in the first
paragraph of this instrument until a successor Person or Persons shall have
become such pursuant to the applicable provisions of this Indenture and
thereafter "Issuer" shall mean such successor Person.
"Issuer request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by the Issuer's Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" from any Asset Disposition by any Person means
cash or Cash Equivalents received (including by way of sale or discounting of a
note, instalment receivable or other receivable, but excluding any other
consideration received in the form of
11
assumption by the acquiror of Debt or other obligations relating to such
properties or assets) therefrom by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses Incurred and all
federal, state, foreign and local taxes required to be accrued as a liability as
a consequence of such Asset Disposition, (ii) all payments made by such Person
or its Restricted Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such Asset Disposition or by applicable law, be repaid out of the proceeds
from such Asset Disposition, (iii) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or joint
ventures as a result of such Asset Disposition and (iv) appropriate amounts to
be provided by such Person or any Restricted Subsidiary thereof, as the case may
be, as a reserve in accordance with generally accepted accounting principles
against any liabilities associated with such assets and retained by such Person
or any Restricted Subsidiary thereof, as the case may be, after such Asset
Disposition, including, without limitation, liabilities under any
indemnification obligations and severance and other employee termination costs
associated with such Asset Disposition, in each case as determined by the Board
of Directors, in its reasonable good faith judgment evidenced by a resolution of
the Board of Directors filed with the Trustee; provided, however, that any
reduction in such reserve within twelve months following the consummation of
such Asset Disposition will be treated for all purposes of the Indenture and the
Securities as a new Asset Disposition at the time of such reduction with Net
Cash Proceeds equal to the amount of such reduction.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Issuer by first class mail, postage prepaid, to each Holder at his address
appearing in the Securities Register on the date of the Offer offering to
purchase up to the principal amount of Securities at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Offer Expiration Date") of the Offer to Purchase which shall be, subject
to any contrary requirements of applicable law, not less than 20 business days
or more than 60 days after the date of such Offer and a settlement date (the
"Purchase Date") for purchase of tendered Securities within five Business Days
after the Offer Expiration Date. The Issuer shall notify the Trustee at least
15 Business Days (or such shorter period as is acceptable to the Trustee) prior
to the mailing of the Offer of the Issuer's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer. The Offer
shall contain information concerning the business of the Issuer and its
Restricted Subsidiaries which the Issuer in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to Purchase
(which at a minimum will include (i) the most recent annual
12
and quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the documents
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer)), (ii) a description of material developments in the Issuer's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Issuer to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the Issuer
to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of the Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Issuer pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been determined
pursuant to the Section of this Indenture requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid for each $1,000 aggregate principal
amount of Securities accepted for payment (as specified pursuant to this
Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Securities not tendered or tendered but not
purchased by the Issuer pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each tendered Security being accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date (unless the Issuer shall default in the payment
of the Purchase Price and accrued interest);
13
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Offer Expiration Date (such Security being, if the Issuer or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Issuer (or its Paying Agent) receives, not later
than the close of business on the Offer Expiration Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder tendered, the certificate number of the
Security the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Issuer shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Issuer shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(12) that in the case of any Holder whose Security is purchased only
in part, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Issuer and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer, and who shall be acceptable to the Trustee.
"Original Securities" means the Securities issued on the Closing Date
and their Successor Securities.
14
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(3) Securities which have been paid pursuant to Section 307 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any Affiliate of the Issuer or of such other obligor.
"Owner Securities Certification" has the meaning specified in Section
201.
"pari passu", when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person, means that each such Debt (a)
either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer.
15
"Permitted Holder" means as of the date of determination (i) Xxxxxx
Xxxxx, Xxxxx Xxxxxxx or Xxxxxx Xxxxxx and any of their respective spouses,
estates, lineal descendants (including adoptive children), heirs, executors,
personal representatives, administrators and trusts for any of their benefit and
(ii) any other Person, the majority of whose Voting Stock is directly or
indirectly owned by any Person described in clause (i) above.
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Senior Bank Debt" means Debt under the Senior Credit
Facility and any extension, renewal, refinancing or refunding thereof in an
aggregate amount not to exceed at any one time outstanding the sum of $250
million less the aggregate amount of any such Debt that is repaid pursuant to
the provisions of clause (iii) of Section 1015(a).
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pinnacle Towers" means Pinnacle Towers Inc., a Delaware corporation.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Issuer pursuant to an effective registration statement
under the Securities Act of 1933, as amended.
"Purchase Agreement" means the Purchase Agreement, dated March 17,
1998, between the Issuer and the Initial Purchasers, as such agreement may be
amended from time to time.
16
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Money Secured Debt" of any Person means Debt of such Person
secured by a Lien on real or personal property of such Person which Debt (a)
constitutes all or a part of the purchase price or construction cost of such
property or (b) is Incurred prior to, at the time of or within 180 days after
the acquisition or substantial completion of such property for the purpose of
financing all or any part of the purchase price or construction cost thereof;
provided, however, that (w) the Debt so incurred does not exceed 100% of the
purchase price or construction cost of such property, (x) such Lien does not
extend to or cover any property other than such item of property and any
improvements on such item, (y) the purchase price or construction cost for such
property is or should be included in "addition to property, plant and equipment"
in accordance with generally accepted accounting principles and (z) the purchase
or construction of such property is not part of any acquisition of a Person or
business unit or line of business.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Redeemable Stock" of any Person means any Capital Stock of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or otherwise (including upon the
occurrence of an event other than a Change of Control or substantially similar
event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise, but other than as a result of the death of the holder
thereof) or is convertible into or exchangeable for Debt or is redeemable at the
option of the holder thereof, in whole or in part, at any time prior to the
final Stated Maturity of the Securities; provided, however, that any Capital
Stock which would not constitute Redeemable Stock but for provisions thereof
giving holders thereof the right to require the Issuer or a Restricted
Subsidiary to repurchase or redeem such Capital Stock upon the occurrence of an
Asset Disposition occurring prior to the final maturity of the Securities shall
not constitute Redeemable Stock if such provisions applicable to such Capital
Stock are no more favorable to the holders of such stock than the provisions
applicable to the Securities contained in the covenant described under
17
"Asset Dispositions" and such provisions applicable to such Capital Stock
specifically provide that the Issuer and its Restricted Subsidiaries will not
repurchase or redeem any such stock pursuant to such provisions prior to the
repurchase of such Securities as are required to be repurchased pursuant to the
covenant described under "Asset Dispositions."
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with its respective Successor
Securities.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Security set forth in Section 202 to be placed
upon Regulation S Securities.
"Regulation S Securities" means all Securities required pursuant to
Section 306(c) to bear a Regulation S Legend.
"Regulation S Temporary Global Security" has the meaning specified in
Section 201.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the Outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined voting power of the
Voting Stock of such Person.
"Required Filing Date" has the meaning specified in Section 1018.
18
"Resale Registration Statement" means a shelf registration statement
under the Securities Act filed by the Issuer, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Securities for resale.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Global Security" has the meaning set forth in Section 201.
"Restricted Payments" has the meaning specified in Section 1010.
"Restricted Period" means the period of 40 consecutive days commencing
on the later of (i) the date the Initial Purchasers advise the Issuer and the
Trustee in writing as the day on which Securities are first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
and (ii) the Closing Date.
"Restricted Securities" means all Securities required pursuant to
Section 306(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Securities.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 202 to
be placed upon a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Issuer, whether
existing on or after the date of this Indenture, unless such Subsidiary is an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means (i) in the case of the Original
Securities, the Securities purchased by the Initial Purchasers from the Issuer
pursuant to the Purchase Agreement, other than the Regulation S Securities, and
(ii) in the case of Additional Securities, any Additional Securities purchased
from the Issuer for resale pursuant to Rule 144A.
19
"Securities" has the meaning specified in the first paragraph of the
recitals to this instrument and includes the Exchange Securities and Additional
Securities.
"Securities Act" means the Securities Act of 1933, as it may be
amended and any successor act thereto.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Payment" has the meaning set forth in Section 1202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Senior Credit Facility" means the Second Amended and Restated Credit
Agreement, dated as of February 26, 1998, among the Issuer, NationsBank of
Texas, National Association, as Administrative Lender, and the lenders named
therein, as amended by the First Amendment thereto dated as of March 17, 1998.
"Site Management Contract" means any agreement pursuant to which the
Issuer or any of its Restricted Subsidiaries has the right to substantially
control Tower Assets and the revenues derived from the rental or use thereof.
"Special Interest" has the meaning specified in the Exchange and
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Debt" means Debt of the Issuer as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of
(or premium, if any) or interest on or otherwise due in respect of such Debt may
be permitted for so long as any default in the payment of principal (or premium,
if any) or interest on the Securities exists; (ii) in the event that any other
default that with the passing of time or the giving of notice, or both, would
constitute an event of default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the
20
Securities to the Trustee, the Trustee shall have the right to give notice to
the Issuer and the holders of such Debt (or trustees or agents therefor) of a
payment blockage, and thereafter no payments of principal of (or premium, if
any) or interest on or otherwise due in respect of such Debt may be made for a
period of 179 days from the date of such notice; and (iii) such Debt may not (x)
provide for payments of principal of such Debt at the stated maturity thereof or
by way of a sinking fund applicable thereto or by way of any mandatory
redemption, defeasance, retirement or repurchase thereof by the Issuer
(including any redemption, retirement or repurchase which is contingent upon
events or circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Securities or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made by the Issuer)
of such other Debt at the option of the holder thereof prior to the final Stated
Maturity of the Securities, other than a redemption or other retirement at the
option of the holder of such Debt (including pursuant to an offer to purchase
made by the Issuer) which is conditioned upon a change of control of the Issuer
pursuant to provisions substantially similar to those contained in Section 1016
(and which shall provide that such Debt will not be repurchased pursuant to such
provisions prior to the Issuer's repurchase of the Securities required to be
repurchased by the Issuer pursuant to the provisions contained in Section 1016);
provided, however, that any Debt which would constitute Subordinated Debt but
for provisions thereof giving holders thereof the right to require the Issuer or
a Restricted Subsidiary to repurchase or redeem such Subordinated Debt upon the
occurrence of an Asset Disposition occurring prior to the final maturity of the
Securities shall constitute Subordinated Debt if such provisions applicable to
such Subordinated Debt are no more favorable to the holders of such Debt than
the provisions applicable to the Securities contained in Section 1015 and such
provisions applicable to such Debt specifically provide that the Issuer and its
Restricted Subsidiaries will not repurchase or redeem any such Debt pursuant to
such provisions prior to the repurchase of such Securities as are required to be
repurchased pursuant to Section 1015.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Restricted Subsidiaries thereof,
or (ii) any other Person (other than a corporation) in which such Person, or one
or more other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purpose of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
21
"Tower Asset Exchange" means any transaction in which the Issuer or a
Restricted Subsidiary exchanges assets for Tower Assets and/or cash or Cash
Equivalents where the fair market value (evidenced by a resolution of the Board
of Directors set forth in an Officers' Certificate delivered to the Trustee) of
the Tower Assets and cash or Cash Equivalents received by the Issuer and its
Restricted Subsidiaries in such exchange is at least equal to the fair market
value of the assets disposed in such exchange.
"Tower Assets" means (i) wireless transmission towers and related
assets that are located on the site of a transmission tower and rooftop and
other wireless transmission sites and related assets located at such site and
(ii) Site Management Contracts.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the ATrustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unregistered Security" means any Security that is not a Registered
Security.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as such
by the Board of Directors as set forth below where (a) neither the Issuer nor
any of its other Subsidiaries (other than another Unrestricted Subsidiary) (i)
provides credit support for, or Guarantee of, any Debt of such Subsidiary or any
Subsidiary of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt) or (ii) is directly or indirectly liable for
any Debt of such Subsidiary or any Subsidiary of such Subsidiary, and (b) no
default with respect to any Debt of such Subsidiary or any Subsidiary of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Debt of the Issuer and its Subsidiaries
(other than another Unrestricted Subsidiary) to declare a default on such other
Debt or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, any other Subsidiary of the Issuer which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary, provided that either (x) the Subsidiary to be so designated has
total assets of $1,000 or less or (y) immediately after giving effect to such
designation, the Issuer could Incur at least $1.00 of
22
additional Debt pursuant to the first paragraph of Section 1008 and provided,
further, that the Issuer could make a Restricted Payment in an amount equal to
the greater of the fair market value and book value of such Subsidiary pursuant
to Section 1011 and such amount is thereafter treated as a Restricted Payment
for the purpose of calculating the aggregate amount available for Restricted
Payments thereunder.
"U.S. Person" means (i) any individual resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of
the United States, (iii) any estate of which an executor or administrator is a
U.S. Person (other than an estate governed by foreign law and of which at least
one executor or administrator is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets), (iv) any trust of which any
trustee is a U.S. Person (other than a trust of which at least one trustee is a
non-U.S. Person who has sole or shared investment discretion with respect to its
assets and no beneficiary of the trust (and no settlor if the Trust is
revocable) is a U.S. Person), (v) any agency or branch of a foreign entity
located in the United States, (vi) any non-discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. Person, (vii) any discretionary or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States (other than
such an account held for the benefit or account of a non-U.S. Person) and (viii)
any partnership or corporation organized or incorporated under the laws of a
foreign jurisdiction and formed by a U.S. Person principally for the purpose of
investing in securities not registered under the Securities Act (unless it is
organized or incorporated, and owned, by accredited investors within the meaning
of Rule 501(a) under the Securities Act who are not natural persons, estates or
trusts); provided, however, that the term AU.S. Person" does not include (A) a
branch or agency of a U.S. Person that is located and operating outside the
United States for valid business purposes as a locally regulated branch or
agency engaged in the banking or insurance business, (B) any employee benefit
plan established and administered in accordance with the law, customary
practices and documentation of a foreign country and (C) the international
organizations set forth in Section 902(o)(7) of Regulation S under the
Securities Act and any other similar international organizations, and its
agencies, affiliates and pension plans.
"Vice President", when used with respect to the Issuer, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of
23
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Restricted Subsidiaries of such
Person or by such Person and one or more Wholly Owned Restricted Subsidiaries of
such Person.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Issuer, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include (in form
reasonably satisfactory to the Trustee)
(10 a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(20 a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(30 a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with (which, in the case of an Opinion of Counsel and if
permitted under the Trust Indenture Act, may be limited to reliance on an
Officers' Certificate as to matters of fact); and
(40 a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
24
and one or more other such eligible and qualified Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee in
accordance with Section 105 hereof, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
25
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Issuer may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Issuer may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Issuer prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Issue from setting a new record date
for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Issuer, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Xxxxxxx 000, (xxx) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph
26
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Issuer's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Issuer in writing and to each Holder of Securities in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Issuer.
------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(10 the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing,
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(20 the Issuer by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, or delivered to the
Issuer addressed to it at the address of its principal office specified in
the first paragraph of this instrument
27
or at any other address previously furnished in writing to the Trustee by
the Issuer.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice, with a copy to the Trustee at the same
time mailed or delivered in accordance with Section 105(1) hereof. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be. Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Issuer and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
28
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Issuer shall
bind its respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and its successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Purchase
Date or Stated Maturity, as the case may be.
29
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A and Regulation S
------------------------------------------------------------
Securities.
----------
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by its execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner provided that such manner is permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by its
execution of such Securities.
Upon their original issuance, Rule 144A Securities shall be issued in
the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee at its Corporate Trust
Office, as custodian for DTC, for credit by DTC to the respective accounts of
beneficial owners of the Securities represented thereby (or such other accounts
as they may direct). Such Global Securities, together with its Successor
Securities which are Global Securities other than the Regulation S Global
Security, are collectively herein called the "Restricted Global Security".
Upon their original issuance, Regulation S Securities (herein called
"Regulation S Temporary Global Security") shall be issued in the form of a
single temporary Global Security registered in the name of DTC, as Depositary,
or its nominee and deposited with the Trustee at its Corporate Trust Office, as
custodian for DTC, for credit to Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of Euroclear and Cedel, in turn for credit to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as such beneficial owners may direct) in accordance with
the rules thereof.
Beneficial interests in the Regulation S Temporary Global Security may
only be held through Euroclear and Cedel until such interests are exchanged for
corresponding interests in an unrestricted Global Security (the "Regulation S
Global Security") registered in the name of DTC, as Depositary, or its nominee
and deposited with the Trustee at its Corporate Trust Office, as custodian for
DTC, as provided in the next sentence. A holder of a beneficial interest in the
30
Regulation S Temporary Global Security must provide written certification to
Euroclear or Cedel, as the case may be, that the beneficial owner of the
interest in such Global Security is not a U.S. Person (an "Owner Securities
Certification" in the form set forth in Annex D), and Euroclear or Cedel, as the
case may be, must provide to the Trustee a similar certificate in the form set
forth in Annex E (a "Depositary Securities Certification"), prior to any
exchange of such beneficial interest for a beneficial interest in the Regulation
S Global Security.
SECTION 202. Form of Face of Security.
------------------------
[IF THE SECURITY IS A RESTRICTED SECURITY, THEN INSERT -- THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHOM THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT) IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.]
[IF THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT -- THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THIS SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST
COMPANY IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE Issuer or Its AGENT FOR REGISTRATION
31
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[IF THIS SECURITY IS A REGULATION S SECURITY, THEN INSERT -- THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD OR
DELIVERED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S.
PERSON, UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[IF THE SECURITY IS A REGULATION S TEMPORARY GLOBAL SECURITY, THEN
INSERT -- THIS SECURITY IS A REGULATION S TEMPORARY GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION
S TEMPORARY GLOBAL SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON PRIOR TO
THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE) EXCEPT IN
CERTAIN LIMITED CIRCUMSTANCES IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
THE SECURITIES EVIDENCED HEREBY WERE ISSUED WITH ORIGINAL ISSUE
DISCOUNT. FOR PURPOSES OF SECTIONS 1272, 1273 AND 0000 XX XXX XXXXXX XXXXXX
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS
61.474% OF ITS PRINCIPAL AMOUNT, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
$385.26 PER $1,000 OF STATED FACE AMOUNT, THE ISSUE DATE IS MARCH 20, 1998 AND
THE YIELD TO MATURITY IS 10% PER ANNUM.
PINNACLE HOLDINGS INC.
10% Senior Discount Notes due 2008
[If Restricted Security C CUSIP No. 72346N AA 9]
32
[If Regulation S Temporary Global Security -- CUSIP No. U72300 AA 1]
[If Regulation S Security -- ISIN No. USU72300AA15]
No. __________ $________
Public Holdings Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promise to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars (such amount the "principal
amount" of this Security) [IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT --
, or such other principal amount (which, when taken together with the principal
amounts of all other Outstanding Securities, shall not exceed $___________ in
the aggregate at any time) as may be set forth in the records of the Trustee as
referred to in accordance with the Indenture,] on March 15, 2008 and to pay
interest thereon from March 15, 2003 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, payable in arrears
semi-annually on March 15 and September 15 in each year, commencing September
15, 2003 at the rate of 10% per annum, until the principal hereof is paid or
made available for payment, provided that any amount of principal of (and
premium, if any) and interest on this Security which is overdue shall bear
interest (to the extent that payment thereof shall be legally enforceable) at
the rate of 11.5% per annum, from the date such amount is due to the day it is
paid or made available for payment, and such overdue interest shall be payable
on demand. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on the relevant Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee in accordance
with Section 308 of the Indenture, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Interest on this Security shall be computed on the basis set forth
in the Indenture.
The principal of this Security shall not accrue interest until March
15, 2003, except as otherwise provided herein or in the case of a default in
payment of principal and premium, if any, upon acceleration or redemption, in
which case interest shall be payable pursuant to the preceding paragraph on such
overdue principal (and premium, if any), such interest shall be payable on
demand and, if not so paid on demand, such interest shall itself bear
33
interest at the rate of 11.5% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest on unpaid interest shall also be payable on
demand.
Payment of the principal of (and premium, if any) and any such
interest on this Security will be made at the office or agency of the Issuer in
the Borough of Manhattan, The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Issuer for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Issuer payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register; provided further that all payments of the
principal (and premium, if any) and interest on Securities, the Holders of which
have given wire transfer instructions to the Issuer or its agent at least 10
Business Days prior to the applicable payment date, will be required to be made
by wire transfer of immediately available funds to the accounts specified by
such Holders in such instructions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
34
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
PINNACLE HOLDINGS INC.
By_______________________
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Issuer designated as its 10% Senior Notes due 2008 (herein called the
"Securities"), unlimited in aggregate principal amount, issued and to be issued
under an Indenture, dated as of March 20, 1998 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), among the
Issuer and The Bank of New York, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption in the event that on or
before March 15, 2001 the Issuer receives net proceeds from the sale of its
Common Stock in one or more Public Equity Offerings, in which case the Issuer
may, at its option, use all or a portion of any such net proceeds to redeem
Securities in a principal amount of at least $5 million and up to an aggregate
of 35% of the outstanding Securities, provided, however, that at least
$211,250,000 in an aggregate principal amount of the Securities remain
outstanding after each such redemption. Any such redemption must occur on a
Redemption Date within 60 days of any such sale at a redemption price of 110% of
the Accreted Value of the Securities to but excluding the Redemption Date plus
accrued and unpaid Special Interest, if any, thereon to but excluding the
Redemption Date.
35
The Securities are further subject to redemption upon not less than 30
nor more than 60 days' notice by mail appearing, at any time on or after March
15, 2003, as a whole or in part, at the election of the Issuer, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed during the 12-month period beginning March 15 of the year indicated:
YEAR REDEMPTION PRICE
---- ----------------
2003................. 105.000%
2004................. 103.333%
2005................. 101.667%
2006 and thereafter.. 100.000%
together, in the case of any such redemption with accrued interest to but
excluding the Redemption Date, provided that interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates referred to on the face
hereof, all as provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the Default Amount of the Securities, in the manner and
with the effect provided in the Indenture. Until March 15, 2003, the Default
Amount in respect of this Security as of any particular date of acceleration
shall equal the Accreted Value of this Security. On and after March 15, 2003,
the Default Amount in respect of this Security shall equal 100% of the principal
amount of this Security.
[IF APPLICABLE, THEN INSERT -- The Holder of this Security (and any
Person that has a beneficial interest in this Security) is entitled to the
benefits of an Exchange and Registration Rights Agreement, dated as of March 20,
1998, and as the same may be amended from time to time (the "Exchange and
Registration Rights Agreement"), executed by the Company. The Exchange and
Registration Rights Agreement provides that Special Interest will be payable by
the Company on the Securities for specified periods if the Company does
36
not comply with certain of its obligations thereunder. Such provisions of the
Exchange and Registration Rights Agreement are hereby incorporated by reference
and made a part hereof.]
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Issuer a result of Asset
Dispositions or (ii) a Change of Control occurs, the Issuer shall be required to
make an Offer to Purchase for all or a specified portion of the Securities.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and its consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at
the time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
certain suits described in the Indenture, including any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein (or, in the case of redemption, on or after the Redemption Date or, in
the case of any purchase of this Security required to be made pursuant to an
Offer to Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
37
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Issuer pursuant to Section 1015 or 1016 of the Indenture, check the box:
[_]
38
If you want to elect to have only a part of this Security purchased by
the Issuer pursuant to Section 1015 or 1016 of the Indenture, state the amount:
$
Dated: Your Signature:__________________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:_____________________________________________
(Signature must be guaranteed by
a member firm of the New York Stock
Exchange or a commercial bank or
trust company)
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
The Bank of New York
as Trustee
By ____________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. On the Closing
Date the Issuer shall issue $325,000,000 aggregate principal amount of
Securities (constituting the Original Securities). The Issuer may from time to
time issue Additional Securities, in each case pursuant to a Board Resolution
and subject to Section 303, provided that such issuance does not result in a
breach or violation any of the covenants contained herein. The Issuer may issue
Exchange Securities from time to time pursuant to an Exchange Offer, in each
case pursuant to a Board Resolution and
39
subject to Section 303, in authorized denominations in exchange for a like
principal amount of Original Securities or Additional Securities. Upon any such
exchange the Original Securities or Additional Securities, as the case may be,
shall be cancelled in accordance with Section 310 and shall no longer be deemed
Outstanding for any purpose.
The Securities shall be known and designated as the "10% Senior
Discount Notes due 2008" of the Issuer. Their Stated Maturity shall be March
15, 2008 and they shall bear interest at the rate of 10% per annum, from March
15, 2003 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semi-annually in
arrears on March 15 and September 15, commencing September 15, 2003, until the
principal thereof is paid or made available for payment. Notwithstanding the
foregoing, Special Interest shall be payable on the Securities under the
circumstances and in the manner specified in the Exchange and Registration
Rights Agreement, which is hereby incorporated by reference herein and made a
part hereof. Accrued Special Interest, if any, shall be paid in cash in arrears
semi-annually on March 15 and September 15 in each year. Whenever in this
Indenture there is mentioned, in any context, interest on, or in respect of, any
Security, such mention shall be deemed to include mention of Special Interest to
the extent that, in such context, Special Interest is, was or would be accrued
or payable in respect thereof and express mention of Special Interest in any
provisions hereof shall not be construed as excluding Special Interest in those
provisions hereof where such express mention is not made.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Issuer in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Issuer for such purpose; provided, however,
that at the option of the Issuer payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register.
The Securities shall be subject to repurchase by the Issuer pursuant
to an Offer to Purchase as provided in Sections 1015 and 1016.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance and covenant defeasance
as provided in Article Twelve.
The Securities shall not have the benefit of any sinking fund
obligation.
Unless the context otherwise requires, the Original Securities, the
Additional Securities and the Exchange Securities shall constitute one series
for all purposes under this Indenture, including with respect to any amendment,
waiver, acceleration or other Act of Holders, redemption or Offer to Purchase.
40
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Issuer by any two
of the Chairman of the Board, the President, any Vice President, the Secretary,
any Assistant Secretary, the Chief Financial Officer, the Treasurer or any
Assistant Treasurer. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of an Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices at the time of the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Original Securities executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Original Securities; and the Trustee in
accordance with the Issuer order shall authenticate and make available for
delivery such Original Securities as provided in this Indenture and not
otherwise.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may, pursuant to a Board Resolution, deliver
Additional Securities executed by the Issuer to the Trustee for authentication,
together with an Issuer Order for the authentication and delivery of such
Additional Securities and an Officers' Certificate stating that the issuance of
such Additional Securities will not result in a breach or violation of any of
the covenants contained in this Indenture and setting forth the manner of such
determination, and the Trustee in accordance with the Issuer Order shall
authenticate and make available for delivery such Securities. Prior to
authenticating such Additional Securities, and accepting any additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, if requested, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating in
substance:
(a) that the issuance of such Additional Securities will not result in
a breach or violation of any of the covenants contained in this Indenture;
and
41
(b) that all conditions hereunder precedent to the authentication and
delivery of such Additional Securities have been complied with and that
such Additional Securities, when such Securities have been duly
authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), will be duly issued and
delivered and will constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms except that (a) the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws now or
hereafter in effect relating to creditors' rights generally; and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity).
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of a registration statement under the
Securities Act with respect to such Securities, the Issuer may deliver Exchange
Securities executed by the Issuer to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such Exchange
Securities and a like principal amount of Original Securities for cancellation
in accordance with Section 310 of this Indenture, and the Trustee in accordance
with the Issuer Order shall authenticate and make available for delivery such
Securities. Prior to authenticating such Exchange Securities, and accepting any
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, if requested, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating in
substance:
(a) that all conditions hereunder precedent to the authentication and
delivery of such Exchange Securities have been complied with and that such
Exchange Securities, when such Securities have been duly authenticated and
delivered by the Trustee (and subject to any other conditions specified in
such Opinion of Counsel), will be duly issued and delivered and will
constitute valid and legally binding obligations of the Issuer enforceable
in accordance with their terms except that (a) the enforceability thereof
may be limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws now or hereafter in effect relating to
creditors' rights generally; and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or equity); and
(b) that the issuance of the Exchange Securities in exchange for
Original Securities has been effected in compliance with the Securities
Act.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and
42
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Issuer may
execute, and upon Issuer order, the Trustee shall authenticate and deliver,
temporary Securities, which Securities are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by its execution thereof.
If temporary Securities are issued, the Issuer will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Issuer designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation (which cancellation shall be only
by the Trustee) of any one or more temporary Securities, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same rights and benefits under this Indenture as definitive Securities.
SECTION 305. Global Securities.
-----------------
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Issuer for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Issuer fails to appoint a successor Depositary within 120
days of such notice, (ii) the Issuer execute and deliver to the Trustee an
Issuer Order stating that they elect to cause the issuance of the Securities in
certificated form and that all Global Securities shall be exchanged in whole for
Securities that are not Global Securities (in which case such exchange
43
shall be effected by the Trustee) or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities.
(3) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Security is to be exchanged
for other Securities or cancelled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any Global Security,
then either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 306(b)
and as otherwise provided in this Article Three, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Issuer shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is given
or made in accordance with the Applicable Procedures and in accordance with all
applicable laws.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(5) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange Generally;
44
Restrictions on Transfer and Exchange; Securities Act Legends.
-------------------------------------------------------------
(a) Registration, Registration of Transfer and Exchange Generally.
-------------------------------------------------------------
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Issuer designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided. Such
Security Register shall distinguish between Original Securities and Exchange
Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Issuer designated pursuant to Section 1002 for such
purpose, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 306, Securities may be exchanged for other Securities of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and (except for the differences between Original Securities and Exchange
Securities provided for herein) entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Issuer and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or
45
exchange of Securities, other than exchanges pursuant to Sections 303, 304, 305,
306, 906, 1013, 1016 or 1108 not involving any transfer.
The Issuer and the Trustee shall not be required (i) to issue,
register the transfer of, or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 1104 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
-------------------------------
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section
306(b). Transfers and exchanges subject to this Section 306(b) shall also be
subject to the other provisions of this Indenture that are not inconsistent with
this Section 306(b).
(1) Restricted Global Security to Regulation S Temporary Global
-----------------------------------------------------------
Security or Regulation S Global Security. If the owner of a beneficial
----------------------------------------
interest in the Restricted Global Security wishes at any time to
transfer such interest to a Person who is required or permitted to
acquire the same in the form of a beneficial interest in the
Regulation S Temporary Global Security (if before the expiration of
the Restricted Period) or in the Regulation S Global Security (if
thereafter), such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (A) an order
given by the Depositary or its authorized representative directing
that a beneficial interest in the Regulation S Temporary Global
Security or Regulation S Global Security (as applicable) in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Restricted Global
Security in an equal principal amount be debited from another
specified Agent Member's account and (B) a Regulation S Certificate,
satisfactory to the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Security or his attorney
duly authorized in writing, then the Trustee, as Security Registrar
but subject to Clause (b)(iv) below, shall reduce the principal amount
of the Restricted Global Security and increase the principal amount of
the Regulation S Temporary Global Security or Regulation S Global
Security (as applicable) by such specified principal amount as
provided in Section 305(c).
(2) Regulation S Temporary Global Security to Restricted Global
-----------------------------------------------------------
Security. If the owner of a beneficial interest in the Regulation S
--------
Temporary Global Security wishes at any time to transfer such interest
to a Person who is required or permitted to acquire the same in the
form of a beneficial interest in the Restricted Global Security, such
transfer may be effected only in accordance with this Clause (b)(ii)
and subject to the Applicable Procedures. Upon receipt by the Trustee,
as Security Xxxxxxxxx,
00
of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Restricted
Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Temporary Global Security in an equal principal amount be
debited from another specified Agent Member's account and (B) if such
transfer is to occur during the Restricted Period, a Restricted
Securities Certificate, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Regulation S Temporary
Global Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal amount of
the Regulation S Temporary Global Security and increase the principal
amount of the Restricted Global Security by such specified principal
amount as provided in Section 305(c).
(3) Exchanges between Global Security and Non-Global Security. A
---------------------------------------------------------
beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 305,
--------
provided that, if such interest is a beneficial interest in the
Restricted Global Security, or if such interest is a beneficial
interest in the Regulation S Temporary Global Security, then such
interest shall be exchanged for a Restricted Security (subject in each
case to Section 306(c)).
(4) Regulation S Temporary Global Security to be Held Through
---------------------------------------------------------
Euroclear or Cedel during Restricted Period. The Issuer shall use its
-------------------------------------------
best efforts to cause the Depositary to ensure that beneficial
interests in the Regulation S Temporary Global Security may be held
only in or through accounts maintained at the Depositary by Euroclear
or Cedel (or by Agent Members acting for the account thereof), and no
person shall be entitled to effect any transfer or exchange that would
result in any such interest being held otherwise than in or through
such an account; provided that this Clause (b)(iv) shall not prohibit
--------
any transfer or exchange of such an interest in accordance with Clause
(b)(ii) above.
(3) Securities Act Legends. Rule 144A Securities and its respective
----------------------
Successor Securities shall bear a Restricted Securities Legend, and Regulation S
Securities and its Successor Securities shall bear a Regulation S Legend,
subject to the following:
(1) subject to the following Clauses of this Section 306(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(2) subject to the following Clauses of this Section 306(c), a
new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Security, provided that, if such new
Security is required pursuant to Section 306(b)(iii) to be issued in
the form of a Restricted Security,
47
it shall bear a Restricted Securities Legend and, if such new Security
is so required to be issued in the form of a Regulation S Security, it
shall bear a Regulation S Legend;
(3) Registered Securities shall not bear a Securities Act Legend;
(4) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new
Security which does not bear a Securities Act Legend may be issued in
exchange for or in lieu of a Security (other than a Global Security)
or any portion thereof which bears such a legend if the Trustee has
received an Unrestricted Securities Certificate, satisfactory to the
Trustee and duly executed by the Holder of such legended Security or
his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and make
available for delivery such a new Security in exchange for or in lieu
of such other Security as provided in this Article Three;
(5) a new Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if,
in the Issuer's judgment, placing such a legend upon such new Security
is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the direction
of the Issuer, shall authenticate and deliver such a new Security as
provided in this Article Three provided that, the Trustee, if it deems
reasonably necessary or appropriate, may request an Opinion of Counsel
in connection with such direction; and
(6) notwithstanding the foregoing provisions of this Section
306(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Issuer has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Issuer,
shall authenticate and make available for delivery a new Security
bearing a Restricted Securities Legend in exchange for such Successor
Security as provided in this Article Three.
Each Holder of a Security agrees to indemnify the Trustee against
any liability that may result from the transfer, exchange or assignment of such
Holder's Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly
48
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (i) evidence
to its satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by either of them to save each of
them and any agent of either of them completely harmless, then, in the absence
of notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall execute and upon its written request the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
and the Trustee (without duplication) may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and reasonable attorneys' fees) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
49
SECTION 308. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder on such date,
and such Defaulted Interest may be paid by the Issuer, at its election in
each case, as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or its respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: The Issuer shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Issuer shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer of such
Special Record Date and, in the name and at the sole expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or its respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Issuer may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be
50
required by such exchange, if, after written notice given by the Issuer to
the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee in its reasonable
judgment.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 308) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
None of the Issuer, the Trustee or any agent of the Issuer or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Issuer or the Trustee, or any agent of the Issuer or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as a Holder of such Security in global form.
SECTION 310. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase pursuant to
Section 1015 or 1016 shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it and only by it.
The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture.
51
All canceled Securities held by the Trustee shall be disposed of as directed by
an Issuer order, provided, that in no event shall the Trustee be required to
destroy such canceled Securities.
SECTION 311. CUSIP Numbers.
-------------
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
as a convenience to Holders; provided that any such notice may state that no
--------
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuer will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on written demand of and at the sole
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture (including, but not limited to,
Article Twelve hereof), when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 307 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
52
(2) will become due and payable at its Stated Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the sole expense,
of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be including, without
limitation, the payment of all fees and expenses of the Trustee, its
agents and counsel;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer including, without limitation, the payment of all
fees and expenses of the Trustee, its agents and counsel; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Issuer to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
53
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest (including Additional
Interest) upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the purchase of
Securities required to be purchased by the Issuer pursuant to an Offer to
Purchase described under Section 1015 or 1016 as to which an Offer has been
mailed to Holders; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant or warranty
of the Issuer in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(6) a default or defaults under the terms of any instrument evidencing
or securing Debt for money borrowed by the Issuer or any Restricted
Subsidiary having an outstanding principal amount of $5 million or more
individually or in the aggregate, whether such Debt now exists or shall
hereafter be created, which default or defaults shall constitute a failure
to pay all or any portion of the principal amount of such indebtedness when
due or shall have resulted in such Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable; or
(7) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered against the Issuer or any Restricted
Subsidiary in an aggregate
54
amount in excess of $5 million by a court of competent jurisdiction which
judgments remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to
appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Issuer or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State or other applicable bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order adjudging the Issuer or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer or any Restricted Subsidiary
under any applicable U.S. Federal or State, or other applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or any Restricted
Subsidiary or of any substantial part of the property of the Issuer or any
Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Issuer or any Restricted Subsidiary, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by the Issuer or any Restricted Subsidiary of a
voluntary case or proceeding under any applicable U.S. Federal or State, or
other applicable bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer or any Restricted Subsidiary to the
entry of a decree or order for relief in respect of the Issuer or such
Restricted Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State, or other applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the Issuer or a
Restricted Subsidiary, or the filing by the Issuer or any Restricted
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable U.S. Federal or State, or other applicable law,
or the consent by the Issuer or any Restricted Subsidiary to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Issuer or any Restricted Subsidiary or of any substantial part of
the property of the Issuer or any Restricted Subsidiary, or the making by
the Issuer or any Restricted Subsidiary of an assignment for the benefit of
creditors, or the admission by the Issuer or any Restricted Subsidiary in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Issuer or any Restricted Subsidiary
in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
55
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the Default Amount of all the Securities to
be due and payable immediately, by a notice in writing to the Issuer (and to the
Trustee if given by Holders), and upon any such declaration such Default Amount
and any accrued interest shall become immediately due and payable. If an Event
of Default specified in Section 501(8) or (9) occurs, the Default Amount and any
accrued interest on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
Until the Full Accretion Date, the "Default Amount" in respect of any
particular Security as of any particular date of acceleration shall equal to
Accreted Value of the Security on such date. On the Full Accretion Date, the
Default Amount in respect of any particular Security shall equal 100% of the
principal amount of the Security.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been purchased
on the Purchase Date pursuant to an Offer to Purchase made by the
Issuer) and, to the extent that payment of such interest is lawful,
any interest and Additional Amounts thereon at the rate provided
therefor in the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
56
(2) all Events of Default, other than the non-payment of the principal
of (and premium, if any) or interest on, the Securities which have become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Issuer covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Issuer, at the Purchase Date thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided therefor in the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any amounts due the Trustee under
Section 607 hereof.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Issuer or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Issuer or any other
obligor upon the Securities, or its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect, receive and distribute
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607 hereof out of the estate in any such proceeding, shall
be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
amounts due the Trustee under Section 607 hereof, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
------------------------------
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Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts including, without limitation,
the reasonable compensation, expenses, disbursements and advances due the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities due the
Holders in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings or pursue remedies in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered and provided to the Trustee
reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding or
pursued any remedies; and
(5) no direction which in Trustee's reasonable judgment is
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities;
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it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of an Offer to Purchase made by the Issuer and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the Holders shall
be restored severally and respectively to its former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 307, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
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No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) the Trustee may refuse to follow any direction which
(1) conflicts with any rule of law or with this Indenture, or
(2) the Trustee, in its reasonable judgment, determines may be
unduly prejudicial to the rights of other Holders of Securities, or
may involve the Trustee in personal liability, or does not have
adequate indemnification against any loss or expense resulting from
the compliance therewith, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities, by
written notice to the Trustee, waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Issuer), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
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Upon any such waiver, such default shall be cured and shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the reasonable costs of such suit, and may assess
reasonable costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided, that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Issuer and provided, further that, subject to a court's discretion, this Section
shall not apply to a suit by the Trustee, and the Issuer shall not seek such
undertaking from any court against the Trustee.
SECTION 515. Waiver of Stay, or Extension Laws.
---------------------------------
The Issuer covenants (to the extent that they may lawfully do so) that
they will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that they
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that they will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(1) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(2) Except during the continuance of an Event of Default:
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(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee, and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 512 hereof; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder of
which it has knowledge as and to the extent provided by the Trust Indenture Act;
provided, however, that in
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the case of any default specified in Section 501(5), no such notice to Holders
shall be given until at least 30 days after the occurrence of such default
(without regard to any Notice of Default). For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Except in the case of an Event of Default in payment of principal of
(premium, if any) or interest on any Security, the Trustee may withhold notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties, without any independent
investigation of any fact or matter therein;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer request or Issuer order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel, shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney upon reasonable advance notice to the
Issuer;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action it takes, suffers
to be taken, or omits in good faith; and
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities or this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for its correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Issuer of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Issuer and any other obligor upon the
Securities with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
65
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Issuer.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Issuer agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed in
writing from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the
compensation, expenses and disbursements of its agents, accountants,
experts and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claims,
liability or expense (including, without limitation, reasonable attorneys'
fees and expenses and taxes (other than taxes based upon, measured by or
determined by the income of such Person) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability (not arising from negligence or bad
faith) in connection with the exercise or performance of any of its powers
or duties hereunder.
The Trustee shall notify the Issuer promptly upon acquiring knowledge
of any claim for which it is entitled to be indemnified hereunder. Failure by
the Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder unless the Issuer are prejudiced thereby. If the Issuer
elect to defend the claim, the Issuer shall be entitled to control the defense
of such claim and the Trustee shall cooperate in such defense. The Trustee may
have separate counsel, and the Issuer shall pay the reasonable fees and expenses
of such counsel until such time as the Issuer assumes the defense of such claim,
and thereafter, to the extent that in the Trustee's reasonable judgment its
interests conflict with or differ from those of the Issuer under such claim.
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The Issuer need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The obligations of the Issuer under this Section 607 shall survive the
resignation or removal of the Trustee and/or satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
applicable bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest within 90 days, apply to the Commission for permission to continue, or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
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(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee, the Issuer
or the Holders of at least 10% in principal amount of the Outstanding
Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Issuer or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Issuer or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Issuer by Board Resolutions of the Issuer may remove the Trustee, or
(ii) subject to Section 514, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Issuer, by Board Resolutions of the Issuer, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Issuer and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the
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Issuer. If, within 30 days after the retiring Trustee resigns, no successor
Trustee shall have been so appointed by the Issuer or the Holders of a
majority in principal amount of the Outstanding Securities and accepted
appointment in the manner hereinafter provided, the retiring Trustee or any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(6) The Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 106. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee a written instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the Issuer
or the successor Trustee, such retiring Trustee shall, upon payment of all
sums owing to the retiring Trustee hereunder and subject to the Lien provided
for in Section 607 hereof, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Issuer shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts. Notwithstanding the replacement of the Trustee
pursuant to this Section 611, the Issuer's obligations under Section 607 hereof
shall continue for the benefit of the retiring Trustee.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties
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hereto. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee, or any corporation into which all
or substantially all of its corporate trust business is transferred, may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuer.
------------------------------------------------
If and when the Trustee shall be or become a creditor of the Issuer(or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Issuer(or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 307, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be reasonably acceptable to the Issuer and shall
at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
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under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be reasonably acceptable to the Issuer and shall mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
as its names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments from the Issuer,
subject to the provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
The Bank of New York,
As Trustee
By___________________________
Authorized Signatory
SECTION 615. Trustee's Application for Instructions from the Company.
-------------------------------------------------------
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date
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specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders.
--------------------------------------------------------
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each March 1 and
September 1, commencing March 1, 1999, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to its rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee shall be provided by the
Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall mail or transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such mailing or
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, if any, with the Commission and with
the Issuer. The Issuer will notify the Trustee when the Securities are
listed on any stock exchange, or any delisting thereof.
SECTION 704. Reports by the Issuer.
---------------------
The Issuer shall file with the Trustee and the Commission, and mail or
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates and written notices
delivered to the Trustee in accordance with the terms of this Indenture).
SECTION 705. Officers Certificate with Respect to Change in Interest Rates.
--------------------------------------------------------------
Within five days after the day on which any Additional Interest begins
accruing, and within five days after any Additional Interest ceases to accrue,
the Issuer shall deliver an Officers' Certificate to the Trustee, stating the
interest rate thereupon in effect for the Unregistered Securities (if any are
Outstanding) and the date on which such rate became effective.
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SECTION 706. Calculation of Original Issue Discount
--------------------------------------
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Issuer may Consolidate, Etc. Only on Certain Terms.
--------------------------------------------------
The Issuer may not, in a single transaction or a series of related
transactions, (i) consolidate or merge with or into any other Person or permit
any other Person to consolidate or merge with or into the Issuer or (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of all or
substantially all of its assets, unless:
(1) in a transaction in which the Issuer does not survive or in which
the Issuer transfers, sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Issuer (for
purposes of this Article Eight, a "Successor Entity") shall be a
corporation, shall be organized and validly existing under the laws of the
United States of America, any State thereof, or the District of Columbia,
and shall expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Securities and the performance of every covenant of this Indenture
on the part of the Issuer to be performed or observed;
(2) immediately before and after giving effect to such transaction on
a pro forma basis (including treating any Debt Incurred by the Issuer or a
Restricted Subsidiary as a result of such transaction as having been
Incurred by the Issuer or such Restricted Subsidiary at the time of such
transaction), no Event of Default, and no event which, after notice or
lapse of time, or both, would constitute an Event of Default, shall have
occurred and be continuing;
(3) except in the case of any such consolidation or merger of the
Issuer with or into, or any such transfer, sale, lease or other disposition
of assets to, a Wholly Owned Restricted Subsidiary, immediately after
giving effect to such transaction, the Consolidated Net Worth of the Issuer
(or the Successor Entity) is equal to or greater than the Consolidated Net
Worth of the Issuer immediately prior to such transaction;
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(4) except in the case of any such consolidation or merger of the
Issuer with or into, or any such transfer, sale, lease or other disposition
of assets to, a Wholly Owned Restricted Subsidiary, immediately after
giving effect to such transaction and treating any Debt which becomes an
obligation of the Issuer or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Issuer or such Restricted
Subsidiary at the time of the transaction, the Issuer (or the Successor
Entity) could Incur at least $1.00 of additional Debt pursuant to the first
paragraph of Section 1008;
(5) if, as a result of any such transaction, property and assets of
the Issuer would become subject to a Lien which would not be permitted by
Section 1013, the Issuer or, if applicable, the Successor Entity, as the
case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to, as the case
may be) Debt secured by such Lien; and
(6) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such amalgamation,
consolidation, merger, conveyance, transfer, sale, lease or disposition
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with, and, with respect to such Officer's
Certificate, setting forth the manner of determination of the Consolidated
Net Worth and the ability to Incur Debt in accordance with Clauses (3) and
(4) of this Section 801, of the Issuer or, if applicable, of the Successor
Entity as required pursuant to the foregoing.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Issuer with, or merger of the Issuer
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Issuer as an entirety in accordance with Section 801, the Successor Entity shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such successor Person
had been named herein as the Issuer herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
75
Without the consent of any Holders, the Issuer, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to an Issuer and the
assumption by any such successor of the covenants of the Issuer herein and
in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Issuer; or
(3) to secure the Securities pursuant to the requirements of Section
1013 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this Clause (5) shall
not adversely affect the interests of the Holders in any material respect;
or
(6) to evidence and provide for the acceptance and appointment
hereunder of a successor Trustee with respect to the Securities.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Issuer and the Trustee, the Issuer, when authorized by Board Resolutions
of the Issuer, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
76
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of an Offer to Purchase which has been
made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and its consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1017, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1015 or 1020, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner adverse to
such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
77
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Issuer will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Issuer will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
78
Issuer hereby appoint the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York, for such purposes. The Issuer will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Issuer shall at any time act as its own Paying Agent, they
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents, they will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure so
to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent (or, until such time as this Indenture shall
be qualified under the Trust Indenture Act, which would be applicable to it as
Paying Agent if this Indenture were so qualified) and (ii) in the event and
during the continuance of any default by the Issuer(or any other obligor upon
the Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums
79
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Issuer or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Issuer on Issuer request, or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer.
SECTION 1004. Existence.
---------
Subject to Article Eight and Section 1015, the Issuer will do or cause
to be done all things necessary to preserve and keep in full force and effect
its respective existence, rights (charter and statutory) and franchises;
provided, however, that an Issuer shall not be required to preserve any such
right or franchise if the Issuer in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Maintenance of Properties.
-------------------------
The Issuer will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary of the Issuer to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Issuer may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent an Issuer or any of its Restricted Subsidiaries from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Issuer or Restricted Subsidiary in good
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faith, desirable in the conduct of its business or the business of any
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Issuer will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Issuer or any of its
Restricted Subsidiaries or upon the income, profits or property of the Issuer or
any of its Restricted Subsidiaries, and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer or any of its Restricted Subsidiaries; provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
negotiations or proceedings.
SECTION 1007. Maintenance of Insurance.
------------------------
The Issuer shall, and the Issuer shall cause its Restricted
Subsidiaries to, keep at all times all of its properties which are of an
insurable nature insured (which may include self-insurance) against loss or
damage with insurers believed by the Issuer to be responsible to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties in accordance with good business practice.
SECTION 1008. Limitation on Consolidated Debt.
-------------------------------
The Issuer may not, and may not permit any Restricted Subsidiary of
the Issuer to Incur any Debt unless the ratio of (a) the aggregate consolidated
principal amount of Debt of the Issuer and its Restricted Subsidiaries
outstanding as of the most recent available quarterly or annual balance sheet,
after giving pro forma effect to the Incurrence of such Debt and any other Debt
Incurred since such balance sheet date that remains outstanding and the receipt
and application of the proceeds thereof, less the principal amount of any Debt
that was outstanding as of such balance sheet date that no longer remains
outstanding, to (b) Adjusted Consolidated Cash Flow, determined on a pro forma
basis as if any such Debt had been incurred and the proceeds thereof had been
applied at the beginning of the relevant fiscal quarter, would be less than or
equal to 7.0 to 1.
Notwithstanding the foregoing limitation, the following Debt may be
Incurred:
(1) Permitted Senior Bank Debt;
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(2) Debt owed by the Issuer to any Wholly Owned Restricted Subsidiary
of the Issuer for which fair value has been received or Debt owed by a
Restricted Subsidiary of the Issuer to the Issuer or a Wholly Owned
Restricted Subsidiary of the Issuer; provided, however, that (a) any such
Debt owing by the Issuer to a Wholly Owned Restricted Subsidiary shall be
Subordinated Debt evidenced by an intercompany promissory note and (b) upon
either (1) the transfer or other disposition by such Wholly Owned
Restricted Subsidiary or the Issuer of any Debt so permitted to a Person
other than the Issuer or another Wholly Owned Restricted Subsidiary of the
Issuer or (2) the issuance (other than directors' qualifying shares), sale,
lease, transfer or other disposition of shares of Capital Stock (including
by consolidation or merger) of such Wholly Owned Restricted Subsidiary to a
Person other than the Issuer or another such Wholly Owned Restricted
Subsidiary, the provisions of this clause (ii) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been Incurred
at the time of such transfer or other disposition;
(3) Debt consisting of Permitted Interest Rate or Currency Protection
Agreements;
(4) Debt which is exchanged for or the proceeds of which are used to
refinance or refund, or any extension or renewal of (each of the foregoing,
a "refinancing"), (a) the Securities, (b) Debt incurred pursuant to clause
(v) of this paragraph or (c) Debt that is not described in any other clause
hereof that is outstanding at the Closing Date after giving effect to the
application of the proceeds from the sale of the Original Securities as
described in Schedule I hereto, in each case in an aggregate principal
amount not to exceed the principal amount of the Debt so refinanced plus
the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt so refinanced or the amount
of any premium reasonably determined by the Issuer as necessary to
accomplish such refinancing by means of a tender offer or privately
negotiated repurchase, plus the expenses of the Issuer or the Restricted
Subsidiary, as the case may be, Incurred in connection with such
refinancing; provided, however, that (A) Debt the proceeds of which are
used to refinance the Securities or Debt which is pari passu with or
subordinate in right of payment to the Securities shall only be permitted
if (x) in the case of any refinancing of the Securities or Debt which is
pari passu to the Securities, the refinancing Debt is Incurred by the
Issuer and made pari passu to the Securities or subordinated to the
Securities, and (y) in the case of any refinancing of Debt which is
subordinated to the Securities, the refinancing Debt is Incurred by the
Issuer and constitutes Subordinated Debt; (B) the refinancing Debt by its
terms, or by the terms of any agreement or instrument pursuant to which
such Debt is issued, (1) does not provide for payments of principal of such
Debt at the stated maturity thereof or by way of a sinking fund applicable
thereto or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof (including any redemption, defeasance, retirement or
repurchase which is contingent upon events or circumstances,
82
but excluding any retirement required by virtue of acceleration of such
Debt upon any event of default thereunder or a redemption or retirement
permitted in clause (2) below), in each case prior to the stated maturity
of the Debt being refinanced and (2) does not permit redemption or other
retirement (including pursuant to an offer to purchase) of such debt at the
option of the holder thereof prior to the final stated maturity of the Debt
being refinanced, other than a redemption or other retirement at the option
of the holder of such Debt (including pursuant to an offer to purchase)
which is conditioned upon provisions substantially similar to those
contained in Sections 1015 and 1016; (C) in the case of any refinancing of
Debt Incurred by the Issuer, the refinancing Debt may be Incurred only by
the Issuer, and in the case of any refinancing of Debt Incurred by a
Restricted Subsidiary, the refinancing Debt may be Incurred only by such
Restricted Subsidiary or the Issuer; and (D) in the case of any refinancing
of Preferred Stock of a Restricted Subsidiary, such Preferred Stock may be
refinanced only with Preferred Stock of such Restricted Subsidiary or the
Issuer;
(5) Acquisition Debt;
(6) ABRY Subordinated Debt;
(7) the Exchange Securities;
(8) Subordinated Debt of the Issuer owed to any of its shareholders
not to exceed in principal face amount in the aggregate for any taxable
year the amount necessary to enable Pinnacle Towers to obtain the maximum
possible deduction for dividends paid, as defined in Section 561 of the
Code and further described in Section 857 of the Internal Revenue Code for
such year, taking into account the sum of all distributions previously made
to shareholders of the Issuer permitted by the provisions described in
clause (iii) of the second paragraph of Section 1011 for such fiscal year,
provided that, any determination under Section 857 of the Internal Revenue
Code shall take into consideration for such purpose the necessity of
increasing the aggregate amounts distributed to reflect the fact that
distributions in payment of any preferred return on any class of stock will
be treated as being made partly from earnings and partly from capital.
SECTION 1009. Limitation on Subordinated Debt of Restricted Subsidiaries.
----------------------------------------------------------
The Issuer may not permit any Restricted Subsidiary to Incur any Debt
that is subordinated in right of payment to any other Debt of such Restricted
Subsidiary, other than Debt that is owed to the Issuer or any other Restricted
Subsidiary.
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SECTION 1010. Limitation on Guarantees of Issuer Debt by Restricted
-----------------------------------------------------
Subsidiaries.
------------
The Issuer may not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee, assume or in any other manner become liable for the
payment of any Debt of the Issuer unless: (i) (A) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture providing for a
Guarantee of payment of the Securities by such Restricted Subsidiary; and (B)
with respect to any Guarantee of Debt of the Issuer that is subordinate in right
of payment to the Securities, such Guarantee shall be subordinated to such
Restricted Subsidiary's Guarantee with respect to the Securities at least to the
same extent as such Debt is subordinated to the Securities, and (ii) such
Restricted Subsidiary waives, and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Issuer or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee until the Securities have been paid in full.
SECTION 1011. Limitation on Restricted Payments.
---------------------------------
The Issuer (i) may not, and may not permit any Restricted Subsidiary
of the Issuer to, directly or indirectly, declare or pay any dividend or make
any distribution (including any payment in connection with any merger or
consolidation derived from assets of the Issuer or any Restricted Subsidiary) in
respect of its Capital Stock or to the holders thereof, excluding (a) any
dividends or distributions by the Issuer payable solely in shares of its Capital
Stock (other than Redeemable Stock) or in options, warrants or other rights to
acquire its Capital Stock (other than Redeemable Stock), and (b) in the case of
a Restricted Subsidiary, dividends or distributions payable to the Issuer or a
Wholly Owned Restricted Subsidiary or pro rata dividends or distributions, (ii)
may not, and may not permit any Restricted Subsidiary to, purchase, redeem, or
otherwise acquire or retire for value (a) any Capital Stock of the Issuer or any
Related Person of the Issuer or (b) any options, warrants or other rights to
acquire shares of Capital Stock of the Issuer or any Related Person of the
Issuer or any securities convertible or exchangeable into shares of Capital
Stock of the Issuer or any Related Person of the Issuer, excluding any purchase
from the Issuer by a Wholly Owned Restricted Subsidiary of any Capital Stock of
the Issuer or options, warrants or other rights to acquire shares of Capital
Stock of the Issuer or any securities convertible or exchangeable into shares of
Capital Stock of the Issuer, (iii) may not make, or permit any Restricted
Subsidiary to make, any Investment in any Unrestricted Subsidiary or any
Affiliate or any Person that would become an Affiliate after giving effect
thereto or any Related Person, other than an Investment in the Issuer or a
Restricted Subsidiary or a Person that will become or be merged with or into or
consolidated with a Restricted Subsidiary as a result of such Investment and
which is not subject to any restriction that would prevent such Restricted
Subsidiary from repaying such Investment and (iv) may not, and may not permit
any Restricted Subsidiary to, redeem, repurchase, defease or otherwise acquire
or retire for value prior to any scheduled maturity, repayment or sinking fund
payment Debt of the Issuer (other than ABRY
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Subordinated Debt) which is pari passu with or subordinate in right of payment
to the Securities (each of clauses (i) through (iv) being a "Restricted
Payment") if:
(1) an Event of Default, or an event that with the passing of time or
the giving of notice, or both, would constitute an Event of Default, shall
have occurred and is continuing or would result from such Restricted
Payment, or
(2) after giving pro forma effect to such Restricted Payment as if
such Restricted Payment had been made at the beginning of the applicable
fiscal-quarter period, the Issuer could not Incur at least $1.00 of
additional Debt pursuant to the first paragraph of Section 1008, or
(3) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments from the Closing Date exceeds the sum of: (a)
cumulative Consolidated Cash Flow since the Closing Date through the last
day of the last full fiscal quarter ending immediately preceding the date
of such Restricted Payment for which quarterly or annual financial
statements are available; minus (b) 1.75 times cumulative Consolidated
Interest Expense of the Issuer since the Closing Date through the last day
of the last full fiscal quarter ending immediately preceding the date of
such Restricted Payment for which quarterly or annual financial statements
are available; plus (c) $10 million.
Prior to the making of any Restricted Payment, the Issuer shall deliver to the
Trustee an Officers' Certificate setting forth the computations by which the
determinations required by clauses (2) and (3) above were made and stating that
no Event of Default, or event that with the passing of time or the giving of
notice, or both, would constitute an Event of Default, has occurred and is
continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or
event that with the passing of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and is continuing or would
result therefrom:
(1) the Issuer may make Restricted Payments in an aggregate
amount up to the amount of the net proceeds received by the Issuer after
the Closing Date, including the fair market value of property other than
cash (determined in good faith by the Board of Directors as evidenced by a
resolution of the Board of Directors filed with the Trustee), from
contributions of capital or the issuance and sale (other than to a
Subsidiary or from or to an employee stock ownership plan financed by loans
from the Issuer or a Subsidiary of the Issuer) of Capital Stock (other than
Redeemable Stock) of the Issuer, options, warrants or other rights to
acquire Capital Stock (other than Redeemable Stock) of the Issuer and Debt
of the Issuer that has been converted into or exchanged for Capital
85
Stock (other than Redeemable Stock and other than by or from a Subsidiary)
of the Issuer after the Closing Date;
(2) the Issuer and any Restricted Subsidiary of the Issuer may pay
any dividend on Capital Stock of any class within 60 days after the
declaration thereof if, on the date when the dividend was declared, the
Issuer or such Restricted Subsidiary could have paid such dividend in
accordance with the foregoing provisions;
(3) (a) the Issuer may use cash distributions received from Pinnacle
Towers to make distributions to shareholders of the Issuer, each such
distribution in an aggregate amount per taxable year equal to (1) the
amount of gross income actually includible by the shareholders of the
Issuer on their tax returns with respect to such taxable year solely as a
result of the operations of the Issuer and its Subsidiaries, multiplied by
(2) the sum of the highest marginal federal and highest marginal state
income tax rates applicable to one or more of the shareholders of the
Issuer; and (b) Pinnacle Towers may make one or more distributions with
respect to any taxable year, which distribution may consist of subordinated
debt of Pinnacle Towers, and, to the extent such distribution is made by
Pinnacle Towers, the Issuer may make one or more distributions to its
shareholders consisting of Subordinated Debt of the Issuer, each such
distribution constituting Subordinated Debt not to exceed in the aggregate
an amount necessary to enable the Issuer to obtain the maximum possible
deduction for dividends paid, as defined in Section 561 of the Internal
Revenue Code and further described in Section 857 of the Internal Revenue
Code, for such year, taking into account the sum of all distributions
previously paid to shareholders of the Issuer in accordance with the terms
of clause (a) of this clause (iii), provided that, in connection with any
such distribution, the Issuer shall take into consideration for such
purpose the necessity of increasing the aggregate amounts distributed to
reflect the fact that distributions in payment of any preferred return on
any class of stock will be treated as being made partly from earnings and
profits and partly from capital;
(4) the Issuer may repurchase Capital Stock of the Issuer owned by
any deceased shareholder of the Issuer (a) to the extent that the Issuer or
any Restricted Subsidiary was the beneficiary of a key-man life insurance
policy on such shareholder and (b) in an amount not to exceed the net
proceeds received by the Issuer or such Restricted Subsidiary from such
key-man life insurance;
(5) the Issuer may repurchase Capital Stock of the Issuer owned by
either any deceased shareholder of the Issuer or former employee of the
Issuer, provided that the aggregate amount of such repurchases (which shall
not include any repurchases made pursuant to and in compliance with clause
(iv) above) in any twelve-month period may not exceed $1 million; and
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(6) the Issuer may refinance any Debt otherwise permitted by clause
(iv) of the second paragraph of Section 1008.
Any payment made pursuant to clause (ii) of this paragraph shall be a Restricted
Payment for purposes of calculating aggregate Restricted Payments pursuant to
the requirements of clause (3) of the preceding paragraph and any payment made
pursuant to clauses (i), (iii), (iv), (v) and (vi) of this paragraph shall not
be a Restricted Payment for purposes of calculating aggregate Restricted
Payments pursuant to the requirements of clause (3) of the preceding paragraph.
SECTION 1012. Limitation on Dividend and Other Payment Restrictions Affecting
---------------------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Issuer may not, and may not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary (i) to pay dividends (in cash or otherwise) or make any other
distributions in respect of its Capital Stock owned by the Issuer or any other
Restricted Subsidiary or pay any Debt or other obligation owed to the Issuer or
any other Restricted Subsidiary; (ii) to make loans or advances to the Issuer or
any other Restricted Subsidiary; or (iii) to transfer any of its property or
assets to the Issuer or any other Restricted Subsidiary. Notwithstanding the
foregoing, the Issuer may, and may permit any Restricted Subsidiary to, suffer
to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the Closing Date
(including the Senior Credit Facility and the agreements executed in
connection therewith) as described in Schedule II hereto;
(2) pursuant to an agreement relating to any Debt Incurred by a
Person (other than a Restricted Subsidiary existing on the Closing Date or
any Restricted Subsidiary carrying on any of the businesses of any such
Restricted Subsidiary) prior to the date on which such Person became a
Restricted Subsidiary and outstanding on such date and not Incurred in
anticipation of becoming a Restricted Subsidiary, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person so acquired;
(3) pursuant to an agreement effecting a renewal, extension,
refunding or refinancing of Debt Incurred pursuant to an agreement referred
to in clause (a) or (b) above, provided, however, that the provisions
contained in such renewal, extension, refunding or refinancing agreement
relating to such encumbrance or restriction are no more restrictive in any
material respect than the provisions contained in the agreement the subject
thereof, as determined in good faith by the Board of Directors and
evidenced by a Board Resolution;
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(4) in the case of clause (iii) above, restrictions contained in any
security agreement (including a capital lease) securing Debt of a
Restricted Subsidiary otherwise permitted under this Indenture, but only to
the extent such restrictions restrict the transfer of the property subject
to such security agreement;
(5) in the case of clause (iii) above, customary nonassignment
provisions entered into in the ordinary course of business in leases and
other contracts to the extent such provisions restrict the transfer or
subletting of any such lease or the assignment of rights under any such
contract;
(6) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement which has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of
such Restricted Subsidiary, provided that consummation of such transaction
would not result in an Event of Default or an event that, with the passing
of time or the giving of notice or both, would constitute an Event of
Default, that such restriction terminates if such transaction is closed or
abandoned and that the closing or abandonment of such transaction occurs
within one year of the date such agreement was entered into; or
(7) such encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of dividends or
distributions.
SECTION 1013. Limitation on Liens.
-------------------
The Issuer may not, and may not permit any Restricted Subsidiary to,
Incur or suffer to exist any Lien on or with respect to any property or assets
now owned or hereafter acquired to secure any Debt without making, or causing
such Restricted Subsidiary to make, effective provision for securing the
Securities (x) equally and ratably with such Debt as to such property for so
long as such Debt will be so secured or (y) in the event such Debt is Debt of
the Issuer which is subordinate in right of payment to the Securities, prior to
such Debt as to such property for so long as such Debt will be so secured.
The foregoing restrictions shall not apply to:
(1) Liens in existence on the Closing Date (other than Liens
described in clause (iv) below) as described in Schedule III hereto;
(2) Liens securing only the Securities;
(3) Liens in favor of the Issuer;
88
(4) Liens to secure Debt under the Senior Credit Facility and any
extension, renewal, refinancing or refunding thereof (or successive
extensions, renewals, refinancings or refundings) so long as the Incurrence
of such Debt is permitted under the Indenture;
(5) Liens on real or personal property of the Issuer or a Restricted
Subsidiary as described in the definition of "Purchase Money Secured Debt"
to secure Purchase Money Secured Debt;
(6) Liens on property existing immediately prior to the time of
acquisition thereof (and not Incurred in anticipation of the financing of
such acquisition);
(7) Liens on property of a Person (a) existing at the time such
Person becomes a Restricted Subsidiary and not incurred in anticipation of
becoming a Restricted Subsidiary or (b) existing immediately prior to the
time such Person is merged or consolidated with or into the Issuer or any
Restricted Subsidiary and not incurred in anticipation of such merger or
consolidation;
(8) any interest in or title of a lessor to any property subject to a
Capital Lease Obligation which is permitted under the Indenture; or
(9) Liens to secure Debt Incurred to extend, renew, refinance or
refund (or successive extensions, renewals, refinancings or refundings), in
whole or in part, Debt secured by any Lien referred to in the foregoing
clauses (i), (ii), (v), (vi) and (vii) so long as such Lien does not extend
to any other property and the principal amount of Debt so secured is not
increased except as otherwise permitted under clause (iv) of Section 1008.
SECTION 1014. Limitation on Ownership of Capital Stock of Restricted
------------------------------------------------------
Subsidiaries.
------------
The Issuer may not, and may not permit any Restricted Subsidiary to,
issue, transfer, convey, lease or otherwise dispose of any shares of Capital
Stock of a Restricted Subsidiary or securities convertible or exchangeable into,
or options, warrants, rights or any other interest with respect to, Capital
Stock of a Restricted Subsidiary to any person other than the Issuer or a Wholly
Owned Restricted Subsidiary except in a transaction consisting of a sale of all
of the Capital Stock of such Restricted Subsidiary owned by the Issuer and any
Restricted Subsidiary and that complies with the provisions of Section 1015 to
the extent such provisions apply.
SECTION 1015. Asset Dispositions.
------------------
89
(1) The Issuer will not, and will not permit any Restricted
Subsidiary to, consummate an Asset Disposition unless (i) the Issuer or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Disposition at least equal to the fair market value of
the assets sold or otherwise disposed of (as evidenced by a Board Resolution and
set forth in an Officers' Certificate), (ii) except in the case of a Tower Asset
Exchange, at least 75% of the consideration received by the Issuer or the
Restricted Subsidiary, as the case may be, from such Asset Disposition shall be
cash or Cash Equivalents; provided that the amount of (a) any liabilities (as
shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet)
of the Issuer or any such Restricted Subsidiary (other than liabilities that are
by their terms subordinated to the Securities) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Issuer or such Restricted Subsidiary from further liability, (b)
any securities, notes or other obligations received by the Issuer or any such
Restricted Subsidiary from such transferee that are converted by the Issuer or
such Restricted Subsidiary into cash (to the extent of the cash received) within
20 days of the applicable Asset Disposition and (c) any liabilities (as shown on
the Issuer's or such Restricted Subsidiary's most recent balance sheet) of a
Restricted Subsidiary all of the Capital Stock of which is disposed of in such
Asset Disposition, which liabilities have ceased to be liabilities of the Issuer
or any Restricted Subsidiary as a result of such Asset Disposition, shall be
considered cash for purposes of such provision, and (iii) after the consummation
of such Asset Disposition, the Issuer shall apply, or cause such Restricted
Subsidiary to apply, the Net Cash Proceeds relating to such Asset Disposition
within 365 days of receipt thereof, less any amounts invested in assets related
to, or the majority voting Capital Stock of entities operating in, the same line
of business as the Issuer or a business reasonably ancillary thereto, to
permanently repay Debt under the Senior Credit Facility or any renewal,
extension, refinancing or refunding thereof to the extent that any such
instrument would require or, at the Issuer's option, permit such application or
prohibit the Offer to Purchase referred to below and, in the case of any Debt
under any revolving credit facility, effect a commitment reduction under such
revolving credit facility. Pending the final application of any such Net Cash
Proceeds, the Issuer or such Restricted Subsidiary may temporarily reduce
indebtedness under a revolving credit facility, if any, or otherwise invest such
Net Cash Proceeds in Cash Equivalents. Any Net Cash Proceeds from Asset
Dispositions that are not applied or invested as provided will be deemed to
constitute "Excess Proceeds," which shall be applied by the Issuer or such
Restricted Subsidiary to make an Offer to Purchase that amount of Securities
equal to the amount of Excess Proceeds at a price equal to 100% of the principal
amount of the Securities (or, if such Offer to Purchase is to be consummated
prior to the Full Accretion Date, 100% of the Accreted Value of Securities) to
be purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase and, to the extent required by the terms thereof, any other Debt of the
Issuer that is pari passu with the Securities or Debt of a Restricted Subsidiary
at a price no greater than 100% of the principal amount thereof plus accrued
interest to the date of purchase or, if such Debt was issued at a discount, 100%
of the accreted value thereof to the date of purchase on a pro rata basis with
the Securities; provided, however, that if at any time any non-cash
consideration received by the Issuer or any Restricted Subsidiary, as the case
may be in connection with any Asset Disposition is converted into or sold or
otherwise disposed of for cash
90
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset
Disposition hereunder and the Net Cash Proceeds thereof shall be applied in
accordance with this covenant. Each Offer to Purchase shall be mailed within 390
days following the Asset Disposition that required such Offer to Purchase.
Following the completion of an Offer to Purchase, to the extent there are any
remaining Excess Proceeds the Issuer may use such Excess Proceeds to any use
which is not otherwise prohibited by the Indenture.
Notwithstanding the foregoing, if the Excess Proceeds resulting from
an Asset Disposition are less than $10.0 million, the application of such Excess
Proceeds to an Offer to Purchase may be deferred until such time as the sum of
such Excess Proceeds plus the aggregate amount of all Excess Proceeds arising
subsequent to such Asset Disposition from all subsequent Asset Dispositions by
the Issuer and its Restricted Subsidiaries aggregates at least $10.0 million, at
which time the Issuer or such Restricted Subsidiary shall apply all Excess
Proceeds that have been so deferred to make an Offer to Purchase as provided
above.
The Issuer shall not be entitled to any credit against its obligations
in connection with any Offer to Purchase made pursuant to this Section 1015 for
the principal amount of any Securities acquired by the Issuer otherwise than
pursuant to such Offer to Purchase.
(2) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1015, the Issuer shall deliver to the Trustee
an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of
the Net Available Proceeds from the Asset Disposition pursuant to which such
Offer is being made, including, if amounts are invested in assets related to the
business of the Issuers, the actual assets acquired and a statement indicating
the relationship of such assets to the business of the Issuer and (iii) the
compliance of such allocation with the provisions of Section 1015(a).
The Issuer shall perform its obligations specified in the Offer for
the Offer to Purchase. On or prior to the Purchase Date, the Issuer shall (i)
accept for payment (on a pro rata basis, if necessary) Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the paying agent (or,
if the Issuer is acting as its own paying agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers=
Certificate stating the Securities or portions thereof accepted for payment by
the Issuers. The paying agent (or the Issuers, if so acting) shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Security not accepted for
payment shall be promptly mailed or delivered by the Issuer to the Holder
thereof. The Issuer shall publicly announce the results of the Offer on or as
soon as practicable after the Purchase Date.
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SECTION 1016. Change of Control.
-----------------
(1) Upon the occurrence of a Change in Control, each Holder of a
Security shall have the right to have all or any part of such Security
repurchased by the Company on the terms and conditions precedent set forth in
this Section 1016 and this Indenture. The Company shall, within 30 days
following the date of the consummation of a transaction resulting in a Change of
Control, mail an Offer with respect to an Offer to Purchase all Outstanding
Securities for cash at a purchase price equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase or, if such Offer to Purchase is to be consummated prior to the Full
Accretion Date, 101% of the Accreted Value thereof on the date of purchase plus
accrued and unpaid Special Interest thereon, if any, to the date of purchase,
(provided, however, that instalments of interest whose Stated Maturity is on or
prior to the Purchase Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 308). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount.
(2) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security or Securities equal in principal amount to any unpurchased portion of
the Security surrendered as requested by the Holder. Any Security not accepted
for payment shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Offer on or as
soon as practicable after the Purchase Date.
(3) Notwithstanding the foregoing, the Issuer will not be required to
make an Offer to Purchase upon a Change of Control if a third party makes the
Offer to Purchase in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 1016 and this Indenture applicable to
the Offer to Purchase made by the Issuer and purchases all Notes validly
tendered and not withdrawn under such Offer to Purchase.
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SECTION 1017. Transactions with Affiliates and Related Persons.
------------------------------------------------
The Issuer may not, and may not permit any Restricted Subsidiary to,
enter into any transaction (or series of related transactions) not in the
ordinary course of business with an Affiliate or Related Person of the Issuer
(other than the Issuer or a Wholly Owned Restricted Subsidiary) involving
aggregate consideration in excess of $1.0 million, including any Investment,
either directly or indirectly, unless such transaction is on terms no less
favorable to the Issuer or such Restricted Subsidiary than those that could be
obtained in a comparable arm's-length transaction with an entity that is not an
Affiliate or Related Person and is in the best interest of the Issuer or such
Restricted Subsidiary. For any transaction (or series of related transactions)
that involves less than or equal to $10 million, the Chief Executive Officer or
Chief Operating Officer of the Issuer shall determine that the transaction
satisfies the above criteria and shall evidence such a determination by an
Officer's certificate filed with the Trustee. For any transaction that involves
in excess of $10 million, a majority of the disinterested members of the Board
of Directors shall determine that the transaction satisfies the above criteria
and shall evidence such a determination by a Board Resolution filed with the
Trustee; provided, however, that, if there are no disinterested directors with
respect to such transaction, there shall be delivered to the Trustee an opinion
of a naturally recognized accounting appraisal or investment banking firm
stating that such transaction is fair from a financial point of view.
SECTION 1018. Provision of Financial Information.
----------------------------------
Whether or not the Issuer is required to be subject to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, or any successor provision
thereto, from and after the earlier of (a) the effectiveness of either the
Exchange Offer Registration Statement with respect to the Original Securities or
the Resale Registration Statement or (b) the date that is 150 days after the
Closing Date the Issuer shall file with the Commission the annual reports,
quarterly reports and other documents which the Issuer would have been required
to file with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto if the Issuer were so required, such documents to be
filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Issuer would have been required so to file such
documents if the Issuer were so required. The Issuer shall also in any event (a)
within 15 days of each Required Filing Date (i) transmit by mail to all Holders,
as their names and addresses appear in the Security Register, without cost to
such Holders, and (ii) file with the Trustee, copies of the annual reports,
quarterly reports and other documents which the Issuer files with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto or
would have been required to file with the Commission pursuant to such Section
13(a) or 15(d) or any successor provisions thereto if the Issuer were required
to be subject to such Sections and (b) if filing such documents by the Issuer
with the Commission is not permitted under the Securities Exchange
93
Act of 1934, promptly upon written request supply copies of such documents to
any prospective Holder.
SECTION 1019. Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(1) The Issuer will deliver to the Trustee, within 90 days after the
end of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Issuer ending after the date
hereof an Officers= Certificate, stating whether or not to the best knowledge of
the signers thereof the Issuer is in default in the performance and observance
of any of the terms, provisions and conditions of Section 801 or Sections 1004
to 1018, inclusive, and if an Issuer shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(2) The Issuer shall deliver to the Trustee, as soon as possible and
in any event within 10 days after an Issuer becomes aware of the occurrence of
an Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers= Certificate setting forth the
details of such Event of Default or default, and the action which the Issuer
proposes to take with respect thereto.
(3) The Issuer shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Issuer's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default has come to their attention and, if such a default has come to their
attention, specifying the nature and period of the existence thereof.
SECTION 1020. Waiver of Certain Covenants.
---------------------------
The Issuer may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1017, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Issuer
may not omit to comply with the terms of such Offer as to such Holder.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
(1) The Securities may be redeemed at the election of the Issuer from
time to time in the event that on or before March 15, 2001 the Issuer receives
net proceeds from the sale of its Common Stock in one or more Public Equity
Offerings, in which case the Issuer may, at its option and from time to time,
use all or a portion of any such net proceeds to redeem Securities in a
principal amount of at least $5 million and up to an aggregate principal amount
equal to 35% of the outstanding Securities, provided, however, that Securities
in an aggregate principal amount equal to at least $211,250,000 remain
outstanding after each such redemption. Any such redemption must occur on a
Redemption Date within 60 days of any such sale at a Redemption Price of 110% of
the Accreted Value of the Securities to but excluding the Redemption Date plus
accrued and unpaid Special Interest, if any, thereon to but excluding the
Redemption Date.
(2) The Securities further may be redeemed at the election of the
Issuer, as a whole or from time to time in part, at any time on or after March
15, 2003, at the Redemption Prices specified in the form of Security
hereinbefore set forth together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Issuer, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Issuer to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution of the Issuer. In case of
any redemption at the election of the Issuer of less than all the Securities,
the Issuer shall, at least 60 days prior to the Redemption Date fixed by the
Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities to be redeemed. In the case of any redemption pursuant to Section
1101(a), the Issuer shall also furnish the Trustee an Officers= Certificate
stating that the Issuer is entitled to effect such redemption and setting forth
a statement of facts showing that the condition or conditions precedent to the
right of the Issuer to redeem have occurred or been satisfied.
95
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Issuer and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, (with a copy to the Trustee,
delivered or mailed to the Corporate Trust Office) at his address appearing in
the Security Register.
All notices of redemption shall include the CUSIP number and shall
state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section
1101(a) or (b) and, if being made pursuant to Section 1101(a), a brief
statement setting forth the Issuer's right to effect such redemption and
the Issuer's basis therefor,
(4) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
96
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the sole expense of the Issuer.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and any after such date (unless the
Issuer shall default in the payment of the Redemption Price and any accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with any applicable
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to its terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
97
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Issuer designated for that purpose pursuant to
Section 1002 (with, if the Issuer or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Issuer shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance.
-----------------------------------------------------------
The Issuer may at its option by Board Resolution, at any time, elect
to have either Section 1202 or Section 1203 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 1202. Defeasance and Discharge.
------------------------
Upon the Issuer's exercise of the option provided in Section 1201
applicable to this Section, the Issuer shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Securities to receive,
solely from the trust fund described in Section 1204 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Issuer's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Twelve. Subject to compliance with this Article
Twelve, the Issuer may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
-------------------
98
Upon the Issuer's exercise of the option provided in Section 1201
applicable to this Section, (i) the Issuer shall be released from its
obligations under Sections 1005 through 1018, inclusive, and Clauses (3), (4)
and (5) of Section 801 and (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (3), (4) or (5) of Section 801), 501(5)
(with respect to any of Sections 1005 through 1018, inclusive), 501(6) and
501(7) shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Clause, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of either Section
1202 or Section 1203 to the then Outstanding Securities:
(1) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and each instalment of interest on the Securities on
the Stated Maturity of such principal or instalment of interest in
accordance with the terms of this Indenture and of such Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such
99
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, provided that (except
--------
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1203, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize gain or
loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred.
(4) The Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Issuer.
(6) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(8)
and (9) are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
100
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Issuer is a party or by which it is bound.
(8) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1202
or the covenant defeasance under Section 1203 (as the case may be) have
been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment Issuer as
defined in the Investment Issuer Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any money or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement.
-------------
101
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuer's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
provided, however, that if the Issuer makes any payment of principal of (and
premium, if any) or interest on] any Security following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by the Trustee or the
Paying Agent.
____________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
102
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
PINNACLE HOLDINGS INC.
By:___________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________
Name:
Title:
000
XXXXX XX XXX XXXX )
) ss.:
CITY OF NEW YORK )
On the _____ day of March, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________________________ of
the Pinnacle Holdings Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
______________________________
STATE OF NEW YORK )
) ss.:
CITY OF NEW YORK )
On the _____ day of March, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________________________ of
The Bank of New York, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
______________________________
104
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to (S) 306(b)(i) of the Indenture)
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 10% Senior Discount Notes due 2008 of
Pinnacle Holdings Inc. (the "Securities")
------------------------------------------
Reference is made to the Indenture, dated as of March 20, 1998 (the
"Indenture"), between Pinnacle Holdings Inc. (the "Issuer") and The Bank of New
York, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Under signed, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security or an interest therein. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected pursuant
to an effective registration statement under the Securities Act, it is being
A-1
effected in accordance with Rule 904 or Rule 144 under the Securities Act and
with all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
------------------
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Issuer or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts in contravention of Rule 904(b)
have been made in the United States by or on behalf of the Owner or
any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
------------------
to Rule 144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from an
Issuer or from an affiliate of the
A-2
Issuer, whichever is later, and is being effected in accordance with
the applicable amount, manner of sale and notice requirements of Rule
144;
(B) the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last
acquired from the Issuer or from an affiliate of the Issuer, whichever
is later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Issuer; and
(C) the Specified Securities are being transferred in compliance
with any applicable "blue sky" securities laws of all applicable
states of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Initial Purchasers.
Dated:
_________________________________________________________
(Print the name of the Undersigned, as such term is defined in
the second paragraph of this certificate.)
By: *
----
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
A-3
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to (S) 306(b)(ii) of the Indenture)
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 10% Senior Discount Notes due 2008
of Pinnacle Holdings Inc. (the "Securities")
--------------------------------------------
Reference is made to the Indenture, dated as of March 20, 1998 (the
"Indenture"), between Pinnacle Holdings Inc. (the "Issuer") and The Bank of New
York, as Trustee. Terms used herein and defined in the Indenture or in Rule
144A or Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act")
are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security or an interest in a Restricted Global Security. In
connection with such transfer, the Owner hereby certifies that,
B-1
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, (i) the Owner is not a U.S. Person (as
defined in the Indenture) and (ii) such transfer is being effected in accordance
with Rule 144A or Rule 144 under the Securities Act and all applicable
securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
-------------------
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(C) the Specified Securities are being transferred in compliance
with any applicable "blue sky" securities laws of all applicable
states of the United States.
(2) Rule 144 Transfers. If the transfer is being effected pursuant
------------------
to Rule 144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from an
Issuer or from an affiliate of the Issuer, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144;
(B) the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last
acquired from an Issuer or from an affiliate of the Issuer, whichever
is later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Issuer; and
(C) the Specified Securities are being transferred in compliance
with any applicable "blue sky" securities laws of all applicable
states of the United States.
B-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer, and the Initial Purchasers.
Dated: _____________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By: *
----
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to (S) 306(c))
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: 10% Senior Discount Notes due 2008
of Pinnacle Holdings Inc. (the "Securities")
--------------------------------------------
Reference is made to the Indenture, dated as of March 20, 1998 (the
"Indenture"), between Pinnacle Holdings Inc. (the "Issuer") and The Bank of New
York, as Trustee. Terms used herein and defined in the Indenture or in Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Under signed, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 306(c) of the
Indenture. In connection
with such exchange, the Owner hereby certifies that the exchange is occurring
after a holding period of at least two years (computed in accordance with
paragraph (d) of Rule 144) has elapsed since the Specified Securities were last
acquired from an Issuer or from an affiliate of the Issuer, whichever is later,
and the Owner is not, and during the preceding three months has not been, an
affiliate of the Issuer. The Owner also acknowledges that any future transfers
of the Specified Securities must comply with all applicable securities laws of
the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer, and the Initial Purchasers.
Dated: _______________________________________________
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By: *
----
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of
the Undersigned must be stated.)
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15.
ANNEX D -- Form of Certification to
Be Given by Holders of Beneficial
Interest in a Regulation S Temporary
Global Security
OWNER SECURITIES CERTIFICATION
PINNACLE HOLDINGS INC.
10% Senior Discount Notes due 2008 (the "Securities")
This is to certify that, as of the date hereof, $________ of the
above-captioned Securities are beneficially owned by non-U.S. person(s). As used
in this paragraph, the term "U.S. person" has the meaning given to it by
Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
Dated:______________, ____
By:____________________________________________
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate
relates.
ANNEX E -- Form of Certification to
Be Given by the Euroclear Clearance
System or Cedel Bank
DEPOSITARY SECURITIES CERTIFICATION
PINNACLE HOLDINGS INC.
10% Senior Discount Notes due 2008 (the "Securities")
This is to certify that, with respect to U.S.$___________ principal
amount of the above-captioned Securities, except as set forth below, we have
received in writing, by tested telex or by electronic transmission, from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of Securities set forth above (our "Member Organizations"),
certifications with respect to such portion, substantially to the effect set
forth in the Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Regulation S Temporary Global Security (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: _____________, _______
Yours faithfully,
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, Brussels office,
as operator of the Euroclear Clearance System]
or
[CEDEL BANK]
By____________________________
